Senate Bill sb2036

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    Florida Senate - 2006                                  SB 2036

    By Senator Bennett





    21-1035A-06                                             See HB

  1                      A bill to be entitled

  2         An act relating to construction defects;

  3         amending ss. 558.001, 558.002, 558.004, and

  4         558.005, F.S.; revising provisions to expand

  5         application to construction defects in any

  6         property; deleting provisions limiting

  7         application to only residential property;

  8         providing an effective date.

  9  

10  Be It Enacted by the Legislature of the State of Florida:

11  

12         Section 1.  Section 558.001, Florida Statutes, is

13  amended to read:

14         558.001  Legislative findings and declaration.--The

15  Legislature finds that it is beneficial to have an alternative

16  method to resolve construction disputes that would reduce the

17  need for litigation as well as protect the rights of property

18  owners homeowners. An effective alternative dispute resolution

19  mechanism in certain construction defect matters should

20  involve the claimant filing a notice of claim with the

21  contractor, subcontractor, supplier, or design professional

22  that the claimant asserts is responsible for the defect, and

23  should provide the contractor, subcontractor, supplier, or

24  design professional with an opportunity to resolve the claim

25  without resort to further legal process.

26         Section 2.  Section 558.002, Florida Statutes, is

27  amended to read:

28         558.002  Definitions.--As used in this chapter, the

29  term:

30         (1)  "Action" means any civil action or arbitration

31  proceeding for damages or indemnity asserting a claim for

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1  damage to or loss of real a dwelling or personal property

 2  caused by an alleged construction defect, but does not include

 3  any administrative action or any civil action or arbitration

 4  proceeding asserting a claim for alleged personal injuries

 5  arising out of an alleged construction defect.

 6         (2)  "Association" has the same meaning as in s.

 7  718.103(2), s. 719.103(2), s. 720.301(9), or s. 723.075.

 8         (3)  "Claimant" means a property owner homeowner,

 9  including a subsequent purchaser or association, who asserts a

10  claim for damages against a contractor, subcontractor,

11  supplier, or design professional concerning a construction

12  defect or a subsequent owner who asserts a claim for

13  indemnification for such damages. The term does not include a

14  contractor, subcontractor, supplier, or design professional.

15         (4)  "Construction defect" means a deficiency in, or a

16  deficiency arising out of, the design, specifications,

17  surveying, planning, supervision, observation of construction,

18  or construction, repair, alteration, or remodeling of a

19  dwelling, any appurtenance to the dwelling, or the real

20  property to which the dwelling or appurtenance is affixed

21  resulting from:

22         (a)  Defective material, products, or components used

23  in the construction or remodeling;

24         (b)  A violation of the applicable codes in effect at

25  the time of construction or remodeling which gives rise to a

26  cause of action pursuant to s. 553.84;

27         (c)  A failure of the design of real property a

28  dwelling to meet the applicable professional standards of care

29  at the time of governmental approval; or

30  

31  

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1         (d)  A failure to construct or remodel real property a

 2  dwelling in accordance with accepted trade standards for good

 3  and workmanlike construction at the time of construction.

 4         (5)  "Contractor" means any person, as defined in s.

 5  1.01, that is legally engaged in the business of designing,

 6  developing, constructing, manufacturing, repairing, or

 7  remodeling real property dwellings or attachments thereto.

 8         (6)  "Design professional" means a person, as defined

 9  in s. 1.01, licensed in this state as an architect, interior

10  designer, landscape architect, engineer, or surveyor.

11         (7)  "Real property Dwelling" means land that is

12  improved and the improvements on such land, including fixtures

13  a single-family house, manufactured or modular home, duplex,

14  triplex, quadruplex, or other multifamily unit in a

15  multifamily residential building designed for residential use

16  in which title to each individual unit is transferred to the

17  owner under a condominium or cooperative system and includes

18  common areas and improvements that are owned or maintained by

19  an association or by members of an association, and also

20  includes the systems, other components, improvements, and

21  other structures or facilities, including, but not limited to,

22  recreational structures or facilities, that are appurtenant to

23  and located on the real property on which the house, duplex,

24  triplex, quadruplex, or other multifamily unit is located, but

25  are not necessarily part of the structure at the time of

26  completion of construction.

27         (8)  "Service" means delivery by certified mail, return

28  receipt requested, to the last known address of the addressee.

29         (9)  "Subcontractor" means a person, as defined in s.

30  1.01, who is a contractor who performs labor and supplies

31  

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1  material on behalf of another contractor in the construction

 2  or remodeling of real property a dwelling.

 3         (10)  "Supplier" means a person, as defined in s. 1.01,

 4  who provides only materials, equipment, or other supplies for

 5  the construction or remodeling of real property a dwelling.

 6         Section 3.  Subsections (1), (2), (3), (4), (5), (8),

 7  (9), and (14) of section 558.004, Florida Statutes, are

 8  amended to read:

 9         558.004  Notice and opportunity to repair.--

10         (1)  In actions brought alleging a construction defect,

11  the claimant shall, at least 60 days before filing any an

12  action involving a single-family home, an association

13  representing 20 or fewer residential parcels, a manufactured

14  or modular home, a duplex, a triplex, or a quadruplex, or at

15  least 120 days before filing an action involving an

16  association representing more than 20 parcels residential

17  parcel owners, serve written notice of claim on the

18  contractor, subcontractor, supplier, or design professional,

19  as applicable, which notice shall refer to this chapter. If

20  the construction defect claim arises from work performed under

21  a contract, the written notice of claim must be served on the

22  person with whom the claimant contracted. The notice of claim

23  must describe the claim in reasonable detail sufficient to

24  determine the general nature of each alleged construction

25  defect and a description of the damage or loss resulting from

26  the defect, if known. The claimant shall endeavor to serve the

27  notice of claim within 15 days after discovery of an alleged

28  defect, but the failure to serve notice of claim within 15

29  days does not bar the filing of an action, subject to s.

30  558.003. This subsection does not preclude a claimant from

31  filing an action sooner than 60 days, or 120 days as

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1  applicable, after service of written notice as expressly

 2  provided in subsection (6), subsection (7), or subsection (8).

 3         (2)  Within 30 days after receipt of the notice of

 4  claim involving a single-family home, an association

 5  representing 20 or fewer residential parcels, a manufactured

 6  or modular home, a duplex, a triplex, or a quadruplex, or

 7  within 50 days after receipt of the notice of claim involving

 8  an association representing more than 20 residential parcels,

 9  the person receiving the notice of claim under subsection (1)

10  is entitled to perform a reasonable inspection of the property

11  dwelling or of each unit subject to the claim to assess each

12  alleged construction defect. An association's right to access

13  property for either maintenance or repair includes the

14  authority to grant access for the inspection. The claimant

15  shall provide the person receiving the notice under subsection

16  (1) and such person's contractors or agents reasonable access

17  to the property dwelling during normal working hours to

18  inspect the property dwelling to determine the nature and

19  cause of each alleged construction defect and the nature and

20  extent of any repairs or replacements necessary to remedy each

21  defect. The person receiving notice under subsection (1) shall

22  reasonably coordinate the timing and manner of any and all

23  inspections with the claimant to minimize the number of

24  inspections. The inspection may include destructive testing by

25  mutual agreement under the following reasonable terms and

26  conditions:

27         (a)  If the person receiving notice under subsection

28  (1) determines that destructive testing is necessary to

29  determine the nature and cause of the alleged defects, such

30  person shall notify the claimant in writing.

31  

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1         (b)  The notice shall describe the destructive testing

 2  to be performed, the person selected to do the testing, the

 3  estimated anticipated damage and repairs to the property

 4  dwelling resulting from the testing, the estimated amount of

 5  time necessary for the testing and to complete the repairs,

 6  and the financial responsibility offered for covering the

 7  costs of repairs.

 8         (c)  If the claimant promptly objects to the person

 9  selected to perform the destructive testing, the person

10  receiving notice under subsection (1) shall provide the

11  claimant with a list of three qualified persons from which the

12  claimant may select one such person to perform the testing.

13  The person selected to perform the testing shall operate as an

14  agent or subcontractor of the person receiving notice under

15  subsection (1) and shall communicate with, submit any reports

16  to and be solely responsible to the person receiving notice.

17         (d)  The testing shall be done at a mutually agreeable

18  time.

19         (e)  The claimant or a representative of the claimant

20  may be present to observe the destructive testing.

21         (f)  The destructive testing shall not render the

22  property dwelling uninhabitable.

23  

24  In the event the claimant fails or refuses to agree to

25  destructive testing, the claimant shall have no claim for

26  damages which could have been avoided or mitigated had

27  destructive testing been allowed when requested and had a

28  feasible remedy been promptly implemented.

29         (3)  Within 10 days after receipt of the notice of

30  claim involving a single-family home, an association

31  representing 20 or fewer residential parcels, a manufactured

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1  or modular home, a duplex, a triplex, or a quadruplex, or

 2  within 30 days after receipt of the notice of claim involving

 3  an association representing more than 20 residential parcels,

 4  the person receiving the notice under subsection (1) may

 5  forward a copy of the notice of claim to each contractor,

 6  subcontractor, supplier, or design professional whom it

 7  reasonably believes is responsible for each defect specified

 8  in the notice of claim and shall note the specific defect for

 9  which it believes the particular contractor, subcontractor,

10  supplier, or design professional is responsible. Each such

11  contractor, subcontractor, supplier, and design professional

12  may inspect the property dwelling as provided in subsection

13  (2).

14         (4)  Within 15 days after receiving a copy of the

15  notice of claim pursuant to subsection (3) involving a

16  single-family home, an association representing 20 or fewer

17  residential parcels, a manufactured or modular home, a duplex,

18  a triplex, or a quadruplex, or within 30 days after receipt of

19  the copy of the notice of claim involving an association

20  representing more than 20 residential parcels, the contractor,

21  subcontractor, supplier, or design professional must serve a

22  written response to the person who forwarded a copy of the

23  notice of claim. The written response shall include a report,

24  if any, of the scope of any inspection of the property

25  dwelling, the findings and results of the inspection, a

26  statement of whether the contractor, subcontractor, supplier,

27  or design professional is willing to make repairs to the

28  property dwelling or whether such claim is disputed, a

29  description of any repairs they are willing to make to remedy

30  the alleged construction defect, and a timetable for the

31  completion of such repairs.

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1         (5)  Within 45 days after receiving the notice of claim

 2  involving a single-family home, an association representing 20

 3  or fewer residential parcels, a manufactured or modular home,

 4  a duplex, a triplex, or a quadruplex, or within 75 days after

 5  receipt of a copy of the notice of claim involving an

 6  association representing more than 20 residential parcels, the

 7  person who received notice under subsection (1) must serve a

 8  written response to the claimant. The response shall be served

 9  to the attention of the person who signed the notice of claim,

10  unless otherwise designated in the notice of claim. The

11  written response must provide:

12         (a)  A written offer to remedy the alleged construction

13  defect at no cost to the claimant, a detailed description of

14  the proposed repairs necessary to remedy the defect, and a

15  timetable for the completion of such repairs;

16         (b)  A written offer to compromise and settle the claim

17  by monetary payment, that will not obligate the person's

18  insurer, and a timetable for making payment;

19         (c)  A written offer to compromise and settle the claim

20  by a combination of repairs and monetary payment, that will

21  not obligate the person's insurer, that includes a detailed

22  description of the proposed repairs and a timetable for the

23  completion of such repairs and making payment;

24         (d)  A written statement that the person disputes the

25  claim and will not remedy the defect or compromise and settle

26  the claim; or

27         (e)  A written statement that a monetary payment,

28  including insurance proceeds, if any, will be determined by

29  the person's insurer within 30 days after notification to the

30  insurer by means of forwarding the claim, which notification

31  shall occur at the same time the claimant is notified of this

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1  settlement option, which the claimant can accept or reject. A

 2  written statement under this paragraph may also include an

 3  offer under paragraph (c), but such offer shall be contingent

 4  upon the claimant also accepting the determination of the

 5  insurer whether to make any monetary payment in addition

 6  thereto. If the insurer for the person receiving the claim

 7  makes no response within the 30 days following notification,

 8  then the claimant shall be deemed to have met all conditions

 9  precedent to commencing an action.

10         (8)  If the claimant timely and properly accepts the

11  offer to repair an alleged construction defect, the claimant

12  shall provide the offeror and the offeror's agents reasonable

13  access to the claimant's property dwelling during normal

14  working hours to perform the repair by the agreed-upon

15  timetable as stated in the offer. If the offeror does not make

16  the payment or repair the defect within the agreed time and in

17  the agreed manner, except for reasonable delays beyond the

18  control of the offeror, including, but not limited to, weather

19  conditions, delivery of materials, claimant's actions, or

20  issuance of any required permits, the claimant may, without

21  further notice, proceed with an action against the offeror

22  based upon the claim in the notice of claim. If the offeror

23  makes payment or repairs the defect within the agreed time and

24  in the agreed manner, the claimant is barred from proceeding

25  with an action for the claim described in the notice of claim

26  or as otherwise provided in the accepted settlement offer.

27         (9)  This section does not prohibit or limit the

28  claimant from making any necessary emergency repairs to the

29  property dwelling as are required to protect the health,

30  safety, and welfare of the claimant. In addition, any offer or

31  failure to offer pursuant to subsection (5) to remedy an

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1  alleged construction defect or to compromise and settle the

 2  claim by monetary payment does not constitute an admission of

 3  liability with respect to the defect and is not admissible in

 4  an action brought under this chapter.

 5         (14)  To the extent that an arbitration clause in a

 6  contract for the sale, design, construction, or remodeling of

 7  real property a dwelling conflicts with this section, this

 8  section shall control.

 9         Section 4.  Section 558.005, Florida Statutes, is

10  amended to read:

11         558.005  Contract provisions; application.--

12         (1)  Except as otherwise provided in subsections (3)

13  and (4), the provisions of this chapter shall control every

14  contract for the design, construction, or remodeling of real

15  property a dwelling entered into on or after July 1, 2004,

16  which contains the notice as set forth in subsection (2) and

17  is conspicuously set forth in capitalized letters.

18         (2)  The notice required by subsection (1) must be in

19  substantially the following form:

20  

21                   CHAPTER 558 NOTICE OF CLAIM

22  

23  CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS

24  YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN

25  ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE

26  YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER

27  PARTY TO THIS CONTRACT A WRITTEN NOTICE REFERRING TO CHAPTER

28  558 OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE

29  AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED

30  CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR

31  OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT

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    Florida Senate - 2006                                  SB 2036
    21-1035A-06                                             See HB




 1  OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE

 2  STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH

 3  MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS.

 4         (3)  After receipt of the initial notice of claim, a

 5  claimant and the person receiving notice under s. 558.004(1)

 6  may, by written mutual agreement, alter the procedure for the

 7  notice of claim process described in this chapter.

 8         (4)  This chapter applies to all actions accruing on or

 9  after July 1, 2004, and all actions commenced on or after such

10  date, regardless of the date of sale, issuance of a

11  certificate of occupancy or its equivalent, or substantial

12  completion of the construction dwelling. Notwithstanding the

13  notice requirements of this section for contracts entered into

14  on or after October July 1, 2006 2004, this chapter applies to

15  all actions accruing before July 1, 2004, but not yet

16  commenced as of July 1, 2004, and failure to include the

17  notice requirements of this section in a contract entered into

18  prior to July 1, 2004, does not operate to bar the procedures

19  of this chapter from applying to all such actions.

20         Section 5.  This act shall take effect October 1, 2006.

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