Florida Senate - 2020                                     SB 948
       By Senator Baxley
       12-01011-20                                            2020948__
    1                        A bill to be entitled                      
    2         An act relating to construction defects; amending s.
    3         553.84, F.S.; defining the term “material violation”;
    4         revising when a person has a cause of action for a
    5         violation relating to the Florida Building Code;
    6         providing requirements for such cause of action;
    7         amending s. 558.004, F.S.; revising requirements
    8         relating to notices of claim; requiring a claimant to
    9         allow persons served with a notice of claim to inspect
   10         certain records; providing that the claimant, under
   11         certain circumstances, does not have a claim for
   12         damages that could have been avoided or mitigated;
   13         reenacting s. 558.002(5), F.S., relating to
   14         definitions for ch. 558, F.S.; providing an effective
   15         date.
   17  Be It Enacted by the Legislature of the State of Florida:
   19         Section 1. Section 553.84, Florida Statutes, is amended to
   20  read:
   21         553.84 Statutory civil action.—
   22         (1)For purposes of this section, the term “material
   23  violation” means a violation that exists within a completed
   24  building, structure, or facility which may reasonably result, or
   25  has resulted, in physical harm to a person or significant damage
   26  to the performance of a building or its systems.
   27         (2) Notwithstanding any other remedies available, any
   28  person or party, in an individual capacity or on behalf of a
   29  class of persons or parties, damaged as a result of a material
   30  violation of this part or the Florida Building Code, has a cause
   31  of action in any court of competent jurisdiction against the
   32  person or party who committed the violation; however, if the
   33  person or party obtains the required building permits and any
   34  local government or public agency with authority to enforce the
   35  Florida Building Code approves the plans, and if the
   36  construction project passes all required inspections under the
   37  Florida Building Code, and if there is no personal injury or
   38  damage to property other than the property that is the subject
   39  of the permits, plans, and inspections, this section does not
   40  apply.
   41         (3)A cause of action pled under this section must cite to
   42  the specific provisions of this part or the Florida Building
   43  Code allegedly violated, must explain how each provision was
   44  allegedly violated, and is subject to dismissal for failing to
   45  do so unless the person or party knew or should have known that
   46  the violation existed.
   47         Section 2. Paragraph (b) of subsection (1) and subsections
   48  (2) and (7) of section 558.004, Florida Statutes, are amended to
   49  read:
   50         558.004 Notice and opportunity to repair.—
   51         (1)
   52         (b) The notice of claim must be made under oath by the
   53  claimant and must describe in specific reasonable detail the
   54  nature of each alleged construction defect, the name and contact
   55  information of any consultants retained by the claimant or on
   56  the claimant’s behalf to inspect the defect, and, if known, the
   57  damage or loss resulting from the defect, including the alleged
   58  cost of repairing the defect and any other damages alleged to
   59  have been suffered as a result of the defect. The notice of
   60  claim must specifically identify, as applicable, the allegedly
   61  defective materials, products, or components and the applicable
   62  code provisions, professional standards of care for design, or
   63  accepted trade standards for the construction or remodeling
   64  allegedly violated and must explain how each cited code
   65  provision or standard was violated. Based upon at least a visual
   66  inspection by the claimant or its agents, the notice of claim
   67  must identify the specific location of each alleged construction
   68  defect sufficiently to enable the responding parties to locate
   69  the alleged defect without undue burden. If requested, the
   70  claimant must allow the person served with the notice of claim
   71  under this subsection the opportunity to inspect all maintenance
   72  records for the subject property. The claimant has no obligation
   73  to perform destructive or other testing for purposes of this
   74  notice.
   75         (2) Within 30 days after service of the notice of claim, or
   76  within 50 days after service of the notice of claim involving an
   77  association representing more than 20 parcels, the person served
   78  with the notice of claim under subsection (1) is entitled to
   79  perform a reasonable inspection of the property or of each unit
   80  subject to the claim to assess each alleged construction defect.
   81  An association’s right to access property for either maintenance
   82  or repair includes the authority to grant access for the
   83  inspection. The claimant shall provide the person served with
   84  notice under subsection (1) and such person’s contractors or
   85  agents reasonable access to the property during normal working
   86  hours to inspect the property to determine the nature and cause
   87  of each alleged construction defect and the nature and extent of
   88  any repairs or replacements necessary to remedy each defect. The
   89  person served with notice under subsection (1) shall reasonably
   90  coordinate the timing and manner of any and all inspections with
   91  the claimant to minimize the number of inspections. If the
   92  claimant fails to grant the person served with the notice under
   93  subsection (1) the opportunity to conduct a reasonable
   94  inspection of the property with the alleged defect during the
   95  timeframe established in this section, the claimant does not
   96  have a claim for damages that could have been avoided or
   97  mitigated had an inspection taken place. The inspection may
   98  include destructive testing by mutual agreement under the
   99  following reasonable terms and conditions:
  100         (a) If the person served with notice under subsection (1)
  101  determines that destructive testing is necessary to determine
  102  the nature and cause of the alleged defects, such person shall
  103  notify the claimant in writing.
  104         (b) The notice shall describe the destructive testing to be
  105  performed, the person selected to do the testing, the estimated
  106  anticipated damage and repairs to or restoration of the property
  107  resulting from the testing, the estimated amount of time
  108  necessary for the testing and to complete the repairs or
  109  restoration, and the financial responsibility offered for
  110  covering the costs of repairs or restoration.
  111         (c) If the claimant promptly objects to the person selected
  112  to perform the destructive testing, the person served with
  113  notice under subsection (1) shall provide the claimant with a
  114  list of three qualified persons from which the claimant may
  115  select one such person to perform the testing. The person
  116  selected to perform the testing shall operate as an agent or
  117  subcontractor of the person served with notice under subsection
  118  (1) and shall communicate with, submit any reports to, and be
  119  solely responsible to the person served with notice.
  120         (d) The testing shall be done at a mutually agreeable time.
  121         (e) The claimant or a representative of the claimant may be
  122  present to observe the destructive testing.
  123         (f) The destructive testing shall not render the property
  124  uninhabitable.
  125         (g) There shall be no construction lien rights under part I
  126  of chapter 713 for the destructive testing caused by a person
  127  served with notice under subsection (1) or for restoring the
  128  area destructively tested to the condition existing prior to
  129  testing, except to the extent the owner contracts for the
  130  destructive testing or restoration.
  132  If the claimant refuses to agree and thereafter permit
  133  reasonable destructive testing, the claimant shall have no claim
  134  for damages which could have been avoided or mitigated had
  135  destructive testing been allowed when requested and had a
  136  feasible remedy been promptly implemented.
  137         (7) A claimant who receives a timely settlement offer must
  138  accept or reject the offer by serving written notice of such
  139  acceptance or rejection, signed by the claimant, on the person
  140  making the offer within 45 days after receiving the settlement
  141  offer. If a claimant initiates an action without first accepting
  142  or rejecting the offer, the court shall stay the action upon
  143  timely motion until the claimant complies with this subsection.
  144         Section 3. For the purpose of incorporating the amendment
  145  made by this act to section 553.84, Florida Statutes, in a
  146  reference thereto, subsection (5) of section 558.002, Florida
  147  Statutes, is reenacted to read:
  148         558.002 Definitions.—As used in this chapter, the term:
  149         (5) “Construction defect” means a deficiency in, or a
  150  deficiency arising out of, the design, specifications,
  151  surveying, planning, supervision, observation of construction,
  152  or construction, repair, alteration, or remodeling of real
  153  property resulting from:
  154         (a) Defective material, products, or components used in the
  155  construction or remodeling;
  156         (b) A violation of the applicable codes in effect at the
  157  time of construction or remodeling which gives rise to a cause
  158  of action pursuant to s. 553.84;
  159         (c) A failure of the design of real property to meet the
  160  applicable professional standards of care at the time of
  161  governmental approval; or
  162         (d) A failure to construct or remodel real property in
  163  accordance with accepted trade standards for good and
  164  workmanlike construction at the time of construction.
  165         Section 4. This act shall take effect July 1, 2020.