Florida Senate - 2012 SB 1196 By Senator Bennett 21-01057-12 20121196__ 1 A bill to be entitled 2 An act relating to residential construction 3 warranties; creating s. 553.835, F.S.; providing 4 legislative findings; providing legislative intent to 5 affirm the limitations to the doctrine of implied 6 warranty of fitness and merchantability or 7 habitability associated with the construction and sale 8 of a new home; providing definitions; prohibiting a 9 cause of action in law or equity based upon the 10 doctrine of implied warranty of fitness and 11 merchantability or habitability for off-site 12 improvements, except as otherwise provided by law; 13 providing for applicability of the act; providing for 14 severability; providing an effective date. 15 16 WHEREAS, the Legislature recognizes and agrees with the 17 limitations on the applicability of the doctrine of implied 18 warranty of fitness and merchantability or habitability for a 19 new home as established in the seminal cases of Gable v. Silver, 20 258 So.2d 11 (Fla. 4th DCA 1972) adopted and cert. dism, 264 21 So.2d 418 (Fla. 1972); Conklin v. Hurley, 428 So.2d 654 (Fla. 22 1983); and Port Sewall Harbor & Tennis Club Owners Ass’n v. 23 First Fed. S. & L. Ass’n., 463 So.2d 530 (Fla. 4th DCA 1985), 24 and does not wish to expand any prospective rights, 25 responsibilities, or liabilities resulting from these decisions, 26 and 27 WHEREAS, the recent decision by the Fifth District Court of 28 Appeal rendered in October of 2010, in Lakeview Reserve 29 Homeowners et. al. v. Maronda Homes, Inc., et. al., 48 So.3d 902 30 (Fla. 5th DCA, 2010), expands the doctrine of implied warranty 31 of fitness and merchantability or habitability for a new home to 32 the construction of roads, drainage systems, retention ponds, 33 and underground pipes, which the court described as essential 34 services, supporting a new home, and 35 WHEREAS, the Florida Legislature finds, as a matter of 36 public policy, that the Maronda case goes beyond the fundamental 37 protections that are necessary for a purchaser of a new home and 38 that form the basis for imposing an implied warranty of fitness 39 and merchantability or habitability for a new home, and creates 40 uncertainty in the state’s fragile real estate and construction 41 industry, and 42 WHEREAS, it is the intent of the Legislature to reject the 43 decision by the Fifth District Court of Appeal in the Maronda 44 case insofar as it expands the doctrine of implied warranty and 45 fitness and merchantability or habitability for a new home to 46 include essential services as defined by the court, NOW 47 THEREFORE, 48 49 Be It Enacted by the Legislature of the State of Florida: 50 51 Section 1. Section 553.835, Florida Statutes, is created to 52 read: 53 553.835 Implied warranties.— 54 (1) The Legislature finds that the courts have reached 55 different conclusions concerning the scope and extent of the 56 common law doctrine of implied warranty of fitness and 57 merchantability or habitability for improvements immediately 58 supporting the structure of a new home, which creates 59 uncertainty in the state’s fragile real estate and construction 60 industry. 61 (2) It is the intent of the Legislature to affirm the 62 limitations to the doctrine of implied warranty of fitness and 63 merchantability or habitability associated with the construction 64 and sale of a new home. 65 (3) As used in this section, the term: 66 (a) “Habitability” means the condition of a home in which 67 inhabitants can live free of structural defects that will likely 68 cause significant harm to the health or safety of inhabitants. 69 (b) “Off-site improvement” means the street, road, 70 sidewalk, drainage, utilities, or any other improvement or 71 structure that is not located on or under the lot on which a new 72 home is constructed, or that is located on or under the lot but 73 that does not immediately and directly support the habitability 74 of the home itself. 75 (4) There is no cause of action in law or equity available 76 to a person based upon the doctrine of implied warranty of 77 fitness and merchantability or habitability for off-site 78 improvements, except as otherwise provided by law. 79 Section 2. If any provision of the act or its application 80 to any person or circumstance is held invalid, the invalidity 81 does not affect other provisions or applications of the act 82 which can be given effect without the invalid provision or 83 application, and to this end the provisions of this act are 84 severable. 85 Section 3. This act shall take effect July 1, 2012, and 86 applies to all cases accruing before, pending on, or filed after 87 that date.