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         553.835Implied 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.