Florida Senate - 2012                      CS for CS for SB 1196
       
       
       
       By the Committees on Judiciary; and Community Affairs; and
       Senator Bennett
       
       
       
       590-03255-12                                          20121196c2
    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 a definition; 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 offsite
   12         improvements; providing that the existing rights of
   13         purchasers of homes or homeowners’ associations to
   14         pursue certain causes of action are not altered or
   15         limited; providing for applicability of the act;
   16         providing for severability; providing an effective
   17         date.
   18  
   19         WHEREAS, the Legislature recognizes and agrees with the
   20  limitations on the applicability of the doctrine of implied
   21  warranty of fitness and merchantability or habitability for a
   22  new home as established in the seminal cases of Gable v. Silver,
   23  258 So.2d 11 (Fla. 4th DCA 1972) adopted and cert. dism, 264
   24  So.2d 418 (Fla. 1972); Conklin v. Hurley, 428 So.2d 654 (Fla.
   25  1983); and Port Sewall Harbor & Tennis Club Owners Ass’n v.
   26  First Fed. S. & L. Ass’n., 463 So.2d 530 (Fla. 4th DCA 1985),
   27  and does not wish to expand any prospective rights,
   28  responsibilities, or liabilities resulting from these decisions,
   29  and
   30         WHEREAS, the recent decision by the Fifth District Court of
   31  Appeal rendered in October of 2010, in Lakeview Reserve
   32  Homeowners et. al. v. Maronda Homes, Inc., et. al., 48 So.3d 902
   33  (Fla. 5th DCA, 2010), expands the doctrine of implied warranty
   34  of fitness and merchantability or habitability for a new home to
   35  the construction of roads, drainage systems, retention ponds,
   36  and underground pipes, which the court described as essential
   37  services, supporting a new home, and
   38         WHEREAS, the Legislature finds, as a matter of public
   39  policy, that the Maronda case goes beyond the fundamental
   40  protections that are necessary for a purchaser of a new home and
   41  that form the basis for imposing an implied warranty of fitness
   42  and merchantability or habitability for a new home, and creates
   43  uncertainty in the state’s fragile real estate and construction
   44  industry, and
   45         WHEREAS, it is the intent of the Legislature to reject the
   46  decision by the Fifth District Court of Appeal in the Maronda
   47  case insofar as it expands the doctrine of implied warranty and
   48  fitness and merchantability or habitability for a new home to
   49  include essential services as defined by the court, NOW
   50  THEREFORE,
   51  
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Section 553.835, Florida Statutes, is created to
   55  read:
   56         553.835Implied warranties.—
   57         (1) The Legislature finds that the courts have reached
   58  different conclusions concerning the scope and extent of the
   59  common law doctrine of implied warranty of fitness and
   60  merchantability or habitability for improvements immediately
   61  supporting the structure of a new home, which creates
   62  uncertainty in the state’s fragile real estate and construction
   63  industry.
   64         (2) It is the intent of the Legislature to affirm the
   65  limitations to the doctrine of implied warranty of fitness and
   66  merchantability or habitability associated with the construction
   67  and sale of a new home.
   68         (3) As used in this section, the term “offsite improvement”
   69  means a street, road, driveway, sidewalk, drainage, utilities,
   70  or any other improvement or structure that:
   71         (a) Is not located on or under the lot on which a new home
   72  is constructed, excluding the improvements that are shared by
   73  and are part of the overall structure of two or more separately
   74  owned homes that are adjoined or attached whereby the
   75  improvements affect the fitness and merchantability or
   76  habitability of one or more of the other adjoining structures;
   77  or
   78         (b) Is located on or under the lot but does not immediately
   79  and directly support the fitness and merchantability or
   80  habitability of the new home itself.
   81         (4) There is no cause of action in law or equity available
   82  to a purchaser of a home or to a homeowners’ association based
   83  upon the doctrine or theory of implied warranty of fitness and
   84  merchantability or habitability for damages to offsite
   85  improvements. However, this section does not alter or limit the
   86  existing rights of purchasers of homes or homeowners’
   87  associations to pursue any other cause of action arising from
   88  defects in offsite improvements based upon contract, tort, or
   89  statute, including, but not limited to, ss. 718.203 and 719.203.
   90         Section 2. If any provision of the act or its application
   91  to any person or circumstance is held invalid, the invalidity
   92  does not affect other provisions or applications of the act
   93  which can be given effect without the invalid provision or
   94  application, and to this end the provisions of this act are
   95  severable.
   96         Section 3. This act shall take effect July 1, 2012, and
   97  applies to all cases accruing before, pending on, or filed after
   98  that date.