Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 270
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Judiciary (Perry) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 553.84, Florida Statutes, is amended to
    6  read:
    7         553.84 Statutory civil action.—
    8         (1)For purposes of this section, the term “material
    9  violation” means a violation that exists within a completed
   10  building, structure, or facility which may reasonably result, or
   11  has resulted, in physical harm to a person or significant damage
   12  to the performance of a building or its systems.
   13         (2) Notwithstanding any other remedies available, any
   14  person or party, in an individual capacity or on behalf of a
   15  class of persons or parties, damaged as a result of a material
   16  violation of this part or the Florida Building Code, has a cause
   17  of action in any court of competent jurisdiction against the
   18  person or party who committed the violation; however, if the
   19  person or party obtains the required building permits and any
   20  local government or public agency with authority to enforce the
   21  Florida Building Code approves the plans, if the construction
   22  project passes all required inspections under the code, and if
   23  there is no personal injury or damage to property other than the
   24  property that is the subject of the permits, plans, and
   25  inspections, this section does not apply unless the person or
   26  party knew or should have known that the violation existed.
   27         (3)A person may not bring a cause of action under this
   28  section unless the person has first properly submitted a claim
   29  for the alleged construction defect under any applicable
   30  warranty and the warranty provider has denied the claim or has
   31  not offered a remedy satisfactory to the person within the time
   32  limits provided in the warranty.
   33         Section 2. Section 558.001, Florida Statutes, is amended to
   34  read:
   35         558.001 Legislative findings and declaration.—The
   36  Legislature finds that it is beneficial to have a statutorily
   37  defined an alternative method to resolve construction disputes
   38  which is designed to that would reduce the need for litigation
   39  as well as protect the rights of property owners. An effective
   40  alternative dispute resolution mechanism in certain construction
   41  defect matters should involve the claimant filing a notice of
   42  claim with the contractor, subcontractor, supplier, or design
   43  professional that the claimant asserts is responsible for the
   44  defect, and should provide the contractor, subcontractor,
   45  supplier, or design professional, and the insurer of the
   46  contractor, subcontractor, supplier, or design professional,
   47  with an opportunity to resolve the claim through confidential
   48  settlement negotiations without resort to further legal process.
   49  If an agreement to provide construction services does not
   50  incorporate the dispute resolution mechanism outlined in this
   51  chapter, the Legislature finds that the right of the contracting
   52  parties to contemplate and provide for the method of dispute
   53  resolution they deem to be most beneficial to their own unique
   54  circumstances should not be hindered by the statutorily defined
   55  dispute resolution mechanism outlined in this chapter.
   56         Section 3. Section 558.003, Florida Statutes, is amended to
   57  read:
   58         558.003 Action; applicability and compliance.—
   59         (1)Unless a party has entered into an agreement that
   60  affirmatively incorporates this chapter or a party has
   61  voluntarily subjected themselves to the requirements of this
   62  chapter, the requirements of this chapter are not applicable in
   63  a cause of action.
   64         (2) A claimant may not file an action subject to this
   65  chapter without first complying with the requirements of this
   66  chapter. If a claimant files an action alleging a construction
   67  defect without first complying with the requirements of this
   68  chapter, on timely motion by a party to the action the court
   69  shall stay the action, without prejudice, and the action may not
   70  proceed until the claimant has complied with such requirements.
   71  The notice requirement is not intended to interfere with an
   72  owner’s ability to complete a project that has not been
   73  substantially completed. The notice is not required for a
   74  project that has not reached the stage of completion of the
   75  building or improvement.
   76         Section 4. Subsections (1) through (4) and subsection (15)
   77  of section 558.004, Florida Statutes, are amended to read:
   78         558.004 Notice and opportunity to repair.—
   79         (1)(a) In actions brought alleging a construction defect,
   80  the claimant shall, at least 60 days before filing any action,
   81  or at least 120 days before filing an action involving an
   82  association representing more than 20 parcels, serve written
   83  notice of claim on the contractor, subcontractor, supplier, or
   84  design professional, as applicable, which notice shall refer to
   85  this chapter. If the construction defect claim arises from work
   86  performed under a contract, the written notice of claim must be
   87  served on the person with whom the claimant contracted. However,
   88  a notice of claim may not be served under this chapter unless
   89  the claimant has first properly submitted a claim for the
   90  alleged construction defect under any applicable warranty and
   91  the warranty provider has denied the claim or has not offered a
   92  remedy satisfactory to the claimant within the time limits
   93  provided in the warranty. This chapter provides a notice process
   94  for a construction defect claim that has been denied or not
   95  otherwise satisfied under any applicable warranty.
   96         (b) The notice of claim must:
   97         1. Describe in specific reasonable detail the nature of
   98  each alleged construction defect; and
   99         2.If the alleged construction defect or evidence thereof
  100  is visible, include at least one photograph of the alleged
  101  defect or evidence thereof, any repair estimates or expert
  102  reports obtained relating to the alleged defect, and a
  103  description of, if known, the damage or loss resulting from the
  104  alleged defect, if known;.
  105         3. Based upon at least a visual inspection by the claimant
  106  or its agents, the notice of claim must identify the specific
  107  location of each alleged construction defect sufficiently to
  108  enable the responding parties to locate the alleged defect
  109  without undue burden. The claimant has no obligation to perform
  110  destructive or other testing for purposes of this notice;.
  111         4.Affirm that the claimant has personal knowledge of the
  112  alleged construction defect;
  113         5.Acknowledge that the claimant is aware of the penalties
  114  for perjury imposed under chapter 837; and
  115         6.Be signed by the claimant and include the following
  116  statement directly above the claimant’s signature line in 18
  117  point uppercase and boldfaced type:
  123         (c)Any person who willfully includes a false statement in
  124  the notice of claim required by this section commits perjury.
  125         (d)(c) The claimant shall endeavor to serve the notice of
  126  claim within 15 days after discovery of an alleged defect, but
  127  the failure to serve notice of claim within 15 days does not bar
  128  the filing of an action, subject to s. 558.003. This subsection
  129  does not preclude a claimant from filing an action sooner than
  130  60 days, or 120 days as applicable, after service of written
  131  notice as expressly provided in subsection (6), subsection (7),
  132  or subsection (8).
  133         (e)(d) A notice of claim served pursuant to this chapter
  134  shall not toll any statute of repose period under chapter 95.
  135         (2) Within 30 days after service of the notice of claim, or
  136  within 50 days after service of the notice of claim involving an
  137  association representing more than 20 parcels, any the person
  138  served with the notice of claim under subsection (1), or a copy
  139  thereof under subsection (3), may is entitled to perform a
  140  reasonable inspection of the property or of each unit subject to
  141  the claim to assess each alleged construction defect. An
  142  association’s right to access property for either maintenance or
  143  repair includes the authority to grant access for the
  144  inspection. The claimant shall provide the person served with
  145  notice under subsection (1), or a copy thereof under subsection
  146  (3), and such person’s contractors or agents reasonable access
  147  to the property during normal working hours to inspect the
  148  property to determine the nature and cause of each alleged
  149  construction defect and the nature and extent of any repairs or
  150  replacements necessary to remedy each defect. The person served
  151  with notice under subsection (1), or a copy thereof under
  152  subsection (3), shall reasonably coordinate the timing and
  153  manner of any and all inspections with the claimant to minimize
  154  the number of inspections. The inspection may include
  155  destructive testing by mutual agreement under the following
  156  reasonable terms and conditions:
  157         (a) If the person served with notice under subsection (1)
  158  determines that destructive testing is necessary to determine
  159  the nature and cause of the alleged defects, such person must
  160  shall notify the claimant in writing.
  161         (b) The notice must shall describe the destructive testing
  162  to be performed, the person selected to do the testing, the
  163  estimated anticipated damage and repairs to or restoration of
  164  the property resulting from the testing, the estimated amount of
  165  time necessary for the testing and to complete the repairs or
  166  restoration, and the financial responsibility offered for
  167  covering the costs of repairs or restoration.
  168         (c) If the claimant promptly objects to the person selected
  169  to perform the destructive testing, the person served with
  170  notice under subsection (1) must shall provide the claimant with
  171  a list of three qualified persons from which the claimant may
  172  select one such person to perform the testing. The person
  173  selected to perform the testing shall operate as an agent or
  174  subcontractor of the person served with notice under subsection
  175  (1) and shall communicate with, submit any reports to, and be
  176  solely responsible to the person served with notice.
  177         (d) The testing must shall be done at a mutually agreeable
  178  time.
  179         (e) The claimant or a representative of the claimant may be
  180  present to observe the destructive testing.
  181         (f) The destructive testing may shall not render the
  182  property uninhabitable.
  183         (g) There are shall be no construction lien rights under
  184  part I of chapter 713 for the destructive testing caused by a
  185  person served with notice under subsection (1) or for restoring
  186  the area destructively tested to the condition existing before
  187  prior to testing, except to the extent the owner contracts for
  188  the destructive testing or restoration.
  190  If the claimant refuses to agree and thereafter permit
  191  reasonable destructive testing, the claimant has shall have no
  192  claim for damages which could have been avoided or mitigated had
  193  destructive testing been allowed when requested and had a
  194  feasible remedy been promptly implemented.
  195         (3) Within 10 days after service of the notice of claim, or
  196  within 30 days after service of the notice of claim involving an
  197  association representing more than 20 parcels, the person served
  198  with notice under subsection (1) shall may serve a copy of the
  199  notice of claim to each contractor, subcontractor, supplier, or
  200  design professional whom it reasonably believes is responsible
  201  for each defect specified in the notice of claim and shall note
  202  the specific defect for which it believes the particular
  203  contractor, subcontractor, supplier, or design professional is
  204  responsible. The notice described in this subsection may not be
  205  construed as an admission of any kind. Each such contractor,
  206  subcontractor, supplier, and design professional may inspect the
  207  property as provided in subsection (2).
  208         (4) Within 15 days after service of a copy of the notice of
  209  claim under pursuant to subsection (3), or within 30 days after
  210  service of the copy of the notice of claim involving an
  211  association representing more than 20 parcels, the contractor,
  212  subcontractor, supplier, or design professional must serve a
  213  written response to the person who served a copy of the notice
  214  of claim. The written response must include a report, if any, of
  215  the scope of any inspection of the property and the findings and
  216  results of the inspection. The written response must include one
  217  or more of the offers or statements specified in paragraphs
  218  (5)(a)-(e), as chosen by the responding contractor,
  219  subcontractor, supplier, or design professional, with all of the
  220  information required for that offer or statement.
  221         (15) Upon request, the claimant and any person served with
  222  notice under pursuant to subsection (1) shall exchange, within
  223  30 days after service of a written request, which request must
  224  cite this subsection and include an offer to pay the reasonable
  225  costs of reproduction, any design plans, specifications, and as
  226  built plans; videos and additional photographs and videos of the
  227  alleged construction defect identified in the notice of claim;
  228  expert reports not already provided which that describe any
  229  defect upon which the claim is made; subcontracts; purchase
  230  orders for the work that is claimed defective or any part of
  231  such materials; and maintenance records and other documents
  232  related to the discovery, investigation, causation, and extent
  233  of the alleged defect identified in the notice of claim and any
  234  resulting damages. A party may assert any claim of privilege
  235  recognized under the laws of this state with respect to any of
  236  the disclosure obligations specified in this chapter. In the
  237  event of subsequent litigation, any party who fails failed to
  238  provide the requested materials is shall be subject to such
  239  sanctions as the court may impose for a discovery violation.
  240  Expert reports exchanged between the parties may not be used in
  241  any subsequent litigation for any purpose, unless the expert, or
  242  a person affiliated with the expert, testifies as a witness or
  243  the report is used or relied upon by an expert who testifies on
  244  behalf of the party for whom the report was prepared.
  245         Section 5. Section 558.006, Florida Statutes, is created to
  246  read:
  247         558.006Notice to mortgagee or assignee.—
  248         (1)If a notice of claim alleging a construction defect
  249  under this chapter is made with respect to real property with
  250  regard to which a mortgagee or an assignee has a security
  251  interest in the real property, the claimant must, within 10 days
  252  after initiating the claim, notify the mortgagee or assignee and
  253  any attorney for the mortgagee or assignee of all of the
  254  following:
  255         (a)The specific nature of each of the defects.
  256         (b)The expected or estimated amount to repair the claimed
  257  defects, itemized.
  258         (c)Whether the defect has been repaired and a description
  259  of any repairs made or required, and, if repairs have not yet
  260  begun, the anticipated date on which the repairs will begin.
  262  The notice required under this subsection must be in writing and
  263  sent by certified mail with return receipt requested.
  264         (2)If repairs relating to the defect are completed after
  265  the claimant notifies the mortgagee or assignee as required
  266  under subsection (1), or if any settlement, partial settlement,
  267  arbitration award, or judgment is obtained by the claimant, the
  268  claimant must provide an additional notice in accordance with
  269  subsection (1) within 30 days after completion of the repairs or
  270  obtaining any settlement, partial settlement, arbitration award,
  271  or judgment.
  272         Section 6. This act shall take effect July 1, 2021.
  274  ================= T I T L E  A M E N D M E N T ================
  275  And the title is amended as follows:
  276         Delete everything before the enacting clause
  277  and insert:
  278                        A bill to be entitled                      
  279         An act relating to construction defects; amending s.
  280         553.84, F.S.; defining the term “material violation”;
  281         revising cause of action requirements for statutory
  282         civil actions relating to certain violations;
  283         requiring that a person submit a construction defect
  284         claim to the warranty provider before bringing a cause
  285         of action; amending s. 558.001, F.S.; revising
  286         legislative findings; amending s. 558.003, F.S.;
  287         providing applicability; amending s. 558.004, F.S.;
  288         requiring that a claimant submit a construction defect
  289         claim to the warranty provider before serving a notice
  290         of claim; providing applicability; revising
  291         requirements for notices of claims; providing that a
  292         person who willfully includes a false statement in a
  293         notice of claim commits perjury; authorizing a person
  294         served with a copy of a notice of claim to perform a
  295         reasonable inspection of the property subject to the
  296         claim; providing inspection requirements for claimants
  297         and persons served with a copy of a notice; requiring,
  298         instead of authorizing, a person served with a notice
  299         to serve a copy of the notice to specified persons
  300         under certain circumstances; making technical changes;
  301         creating s. 558.006, F.S.; requiring a claimant to
  302         provide specified notice relating to claims alleging
  303         construction defects; requiring a claimant provide
  304         additional notice within a specified timeframe under
  305         certain circumstances; providing an effective date.