Florida Senate - 2021                                     SB 270
       By Senator Perry
       8-00205A-21                                            2021270__
    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 cause of action requirements for statutory
    5         civil actions relating to certain violations;
    6         requiring that a person submit a construction defect
    7         claim to the warranty provider before bringing a cause
    8         of action; amending s. 558.004, F.S.; requiring that a
    9         claimant submit a construction defect claim to the
   10         warranty provider before serving a notice of claim;
   11         providing applicability; revising requirements for
   12         notices of claims; providing that a person who
   13         willfully includes a false statement in a notice of
   14         claim commits perjury; authorizing a person served
   15         with a copy of a notice of claim to perform a
   16         reasonable inspection of the property subject to the
   17         claim; providing inspection requirements for claimants
   18         and persons served with a copy of a notice; requiring,
   19         instead of authorizing, a person served with a notice
   20         to serve a copy of the notice to specified persons
   21         under certain circumstances; making technical changes;
   22         creating s. 558.006, F.S.; requiring a claimant to
   23         notify a mortgagee or an assignee in writing within a
   24         specified timeframe after a settlement or judgment of
   25         a construction defect claim under certain
   26         circumstances; requiring a claimant to update the
   27         notice within a specified timeframe under certain
   28         circumstances; providing an effective date.
   30  Be It Enacted by the Legislature of the State of Florida:
   32         Section 1. Section 553.84, Florida Statutes, is amended to
   33  read:
   34         553.84 Statutory civil action.—
   35         (1)For purposes of this section, the term “material
   36  violation” means a violation that exists within a completed
   37  building, structure, or facility which may reasonably result, or
   38  has resulted, in physical harm to a person or significant damage
   39  to the performance of a building or its systems.
   40         (2) Notwithstanding any other remedies available, any
   41  person or party, in an individual capacity or on behalf of a
   42  class of persons or parties, damaged as a result of a material
   43  violation of this part or the Florida Building Code, has a cause
   44  of action in any court of competent jurisdiction against the
   45  person or party who committed the violation; however, if the
   46  person or party obtains the required building permits and any
   47  local government or public agency with authority to enforce the
   48  Florida Building Code approves the plans, if the construction
   49  project passes all required inspections under the code, and if
   50  there is no personal injury or damage to property other than the
   51  property that is the subject of the permits, plans, and
   52  inspections, this section does not apply unless the person or
   53  party knew or should have known that the violation existed.
   54         (3)A person may not bring a cause of action under this
   55  section unless the person has first properly submitted a claim
   56  for the alleged construction defect under any applicable
   57  warranty and the warranty provider has denied the claim or has
   58  not offered a remedy satisfactory to the person within the time
   59  limits provided in the warranty.
   60         Section 2. Subsections (1) through (4) and subsection (15)
   61  of section 558.004, Florida Statutes, are amended to read:
   62         558.004 Notice and opportunity to repair.—
   63         (1)(a) In actions brought alleging a construction defect,
   64  the claimant shall, at least 60 days before filing any action,
   65  or at least 120 days before filing an action involving an
   66  association representing more than 20 parcels, serve written
   67  notice of claim on the contractor, subcontractor, supplier, or
   68  design professional, as applicable, which notice shall refer to
   69  this chapter. If the construction defect claim arises from work
   70  performed under a contract, the written notice of claim must be
   71  served on the person with whom the claimant contracted. However,
   72  a notice of claim may not be served under this chapter unless
   73  the claimant has first properly submitted a claim for the
   74  alleged construction defect under any applicable warranty and
   75  the warranty provider has denied the claim or has not offered a
   76  remedy satisfactory to the claimant within the time limits
   77  provided in the warranty. This chapter provides a notice process
   78  for a construction defect claim that has been denied or not
   79  otherwise satisfied under any applicable warranty.
   80         (b) The notice of claim must:
   81         1. Describe in specific reasonable detail the nature of
   82  each alleged construction defect; and
   83         2.If the alleged construction defect or evidence thereof
   84  is visible, include at least one photograph of the alleged
   85  defect or evidence thereof, any repair estimates or expert
   86  reports obtained relating to the alleged defect, and a
   87  description of, if known, the damage or loss resulting from the
   88  alleged defect, if known;.
   89         3. Based upon at least a visual inspection by the claimant
   90  or its agents, the notice of claim must identify the specific
   91  location of each alleged construction defect sufficiently to
   92  enable the responding parties to locate the alleged defect
   93  without undue burden. The claimant has no obligation to perform
   94  destructive or other testing for purposes of this notice;.
   95         4.Affirm that the claimant has personal knowledge of the
   96  alleged construction defect;
   97         5.Acknowledge that the claimant is aware of the penalties
   98  for perjury imposed under chapter 837; and
   99         6.Be signed by the claimant and include the following
  100  statement directly above the claimant’s signature line in 18
  101  point uppercase and boldfaced type:
  107         (c)Any person who willfully includes a false statement in
  108  the notice of claim required by this section commits perjury.
  109         (d)(c) The claimant shall endeavor to serve the notice of
  110  claim within 15 days after discovery of an alleged defect, but
  111  the failure to serve notice of claim within 15 days does not bar
  112  the filing of an action, subject to s. 558.003. This subsection
  113  does not preclude a claimant from filing an action sooner than
  114  60 days, or 120 days as applicable, after service of written
  115  notice as expressly provided in subsection (6), subsection (7),
  116  or subsection (8).
  117         (e)(d) A notice of claim served pursuant to this chapter
  118  shall not toll any statute of repose period under chapter 95.
  119         (2) Within 30 days after service of the notice of claim, or
  120  within 50 days after service of the notice of claim involving an
  121  association representing more than 20 parcels, any the person
  122  served with the notice of claim under subsection (1), or a copy
  123  thereof under subsection (3), may is entitled to perform a
  124  reasonable inspection of the property or of each unit subject to
  125  the claim to assess each alleged construction defect. An
  126  association’s right to access property for either maintenance or
  127  repair includes the authority to grant access for the
  128  inspection. The claimant shall provide the person served with
  129  notice under subsection (1), or a copy thereof under subsection
  130  (3), and such person’s contractors or agents reasonable access
  131  to the property during normal working hours to inspect the
  132  property to determine the nature and cause of each alleged
  133  construction defect and the nature and extent of any repairs or
  134  replacements necessary to remedy each defect. The person served
  135  with notice under subsection (1), or a copy thereof under
  136  subsection (3), shall reasonably coordinate the timing and
  137  manner of any and all inspections with the claimant to minimize
  138  the number of inspections. The inspection may include
  139  destructive testing by mutual agreement under the following
  140  reasonable terms and conditions:
  141         (a) If the person served with notice under subsection (1)
  142  determines that destructive testing is necessary to determine
  143  the nature and cause of the alleged defects, such person must
  144  shall notify the claimant in writing.
  145         (b) The notice must shall describe the destructive testing
  146  to be performed, the person selected to do the testing, the
  147  estimated anticipated damage and repairs to or restoration of
  148  the property resulting from the testing, the estimated amount of
  149  time necessary for the testing and to complete the repairs or
  150  restoration, and the financial responsibility offered for
  151  covering the costs of repairs or restoration.
  152         (c) If the claimant promptly objects to the person selected
  153  to perform the destructive testing, the person served with
  154  notice under subsection (1) must shall provide the claimant with
  155  a list of three qualified persons from which the claimant may
  156  select one such person to perform the testing. The person
  157  selected to perform the testing shall operate as an agent or
  158  subcontractor of the person served with notice under subsection
  159  (1) and shall communicate with, submit any reports to, and be
  160  solely responsible to the person served with notice.
  161         (d) The testing must shall be done at a mutually agreeable
  162  time.
  163         (e) The claimant or a representative of the claimant may be
  164  present to observe the destructive testing.
  165         (f) The destructive testing may shall not render the
  166  property uninhabitable.
  167         (g) There are shall be no construction lien rights under
  168  part I of chapter 713 for the destructive testing caused by a
  169  person served with notice under subsection (1) or for restoring
  170  the area destructively tested to the condition existing before
  171  prior to testing, except to the extent the owner contracts for
  172  the destructive testing or restoration.
  174  If the claimant refuses to agree and thereafter permit
  175  reasonable destructive testing, the claimant has shall have no
  176  claim for damages which could have been avoided or mitigated had
  177  destructive testing been allowed when requested and had a
  178  feasible remedy been promptly implemented.
  179         (3) Within 10 days after service of the notice of claim, or
  180  within 30 days after service of the notice of claim involving an
  181  association representing more than 20 parcels, the person served
  182  with notice under subsection (1) shall may serve a copy of the
  183  notice of claim to each contractor, subcontractor, supplier, or
  184  design professional whom it reasonably believes is responsible
  185  for each defect specified in the notice of claim and shall note
  186  the specific defect for which it believes the particular
  187  contractor, subcontractor, supplier, or design professional is
  188  responsible. The notice described in this subsection may not be
  189  construed as an admission of any kind. Each such contractor,
  190  subcontractor, supplier, and design professional may inspect the
  191  property as provided in subsection (2).
  192         (4) Within 15 days after service of a copy of the notice of
  193  claim under pursuant to subsection (3), or within 30 days after
  194  service of the copy of the notice of claim involving an
  195  association representing more than 20 parcels, the contractor,
  196  subcontractor, supplier, or design professional must serve a
  197  written response to the person who served a copy of the notice
  198  of claim. The written response must include a report, if any, of
  199  the scope of any inspection of the property and the findings and
  200  results of the inspection. The written response must include one
  201  or more of the offers or statements specified in paragraphs
  202  (5)(a)-(e), as chosen by the responding contractor,
  203  subcontractor, supplier, or design professional, with all of the
  204  information required for that offer or statement.
  205         (15) Upon request, the claimant and any person served with
  206  notice under pursuant to subsection (1) shall exchange, within
  207  30 days after service of a written request, which request must
  208  cite this subsection and include an offer to pay the reasonable
  209  costs of reproduction, any design plans, specifications, and as
  210  built plans; videos and additional photographs and videos of the
  211  alleged construction defect identified in the notice of claim;
  212  expert reports not already provided which that describe any
  213  defect upon which the claim is made; subcontracts; purchase
  214  orders for the work that is claimed defective or any part of
  215  such materials; and maintenance records and other documents
  216  related to the discovery, investigation, causation, and extent
  217  of the alleged defect identified in the notice of claim and any
  218  resulting damages. A party may assert any claim of privilege
  219  recognized under the laws of this state with respect to any of
  220  the disclosure obligations specified in this chapter. In the
  221  event of subsequent litigation, any party who fails failed to
  222  provide the requested materials is shall be subject to such
  223  sanctions as the court may impose for a discovery violation.
  224  Expert reports exchanged between the parties may not be used in
  225  any subsequent litigation for any purpose, unless the expert, or
  226  a person affiliated with the expert, testifies as a witness or
  227  the report is used or relied upon by an expert who testifies on
  228  behalf of the party for whom the report was prepared.
  229         Section 3. Section 558.006, Florida Statutes, is created to
  230  read:
  231         558.006Notice to mortgagee or assignee.—
  232         (1)If a notice of claim alleging a construction defect
  233  under this chapter results in a monetary settlement or judgment
  234  in favor of the claimant, and a mortgagee or an assignee has a
  235  security interest in the real property subject to the claim, the
  236  claimant must, within 90 days after the resolution of the claim,
  237  notify the mortgagee or assignee, in writing, of all of the
  238  following:
  239         (a)The specific nature of the defect.
  240         (b)The outcome of the claim, including the amount of any
  241  monetary settlement reached or judgment awarded.
  242         (c)Whether the defect has been repaired and a description
  243  of any repairs made or, if repairs have not yet begun, the
  244  anticipated date on which the repairs will begin.
  245         (2)If repairs relating to the defect are completed after
  246  the claimant notifies the mortgagee or assignee as required
  247  under subsection (1), the claimant must update the notice within
  248  30 days after completion of the repairs.
  249         Section 4. This act shall take effect July 1, 2021.