Florida Senate - 2025 SB 1442
By Senator McClain
9-01136-25 20251442__
1 A bill to be entitled
2 An act relating to construction defects; amending s.
3 558.003, F.S.; providing that deviations from the
4 initial plans and specifications for construction
5 projects are not considered construction defects;
6 amending s. 558.004, F.S.; revising the timeframe in
7 which a claimant representing more than a certain
8 number of parcels must serve written notice of claim
9 to certain parties; revising the list of parties to be
10 served written notice; requiring such claimants to
11 describe with specificity the location of the known
12 damages from the alleged defective conditions;
13 revising the timeframe in which the parties served may
14 perform a reasonable inspection of the property;
15 revising which parts of the property the parties
16 served may inspect; revising the timeframe in which
17 the parties served may serve a notice of claim to any
18 other person such party served believes is responsible
19 for the construction defects; revising the persons to
20 whom the parties served may serve a notice of claim;
21 revising the timeframe to file a written response to
22 such notice of claim; revising the timeframe in which
23 a served party must respond to a notice of claim;
24 requiring such claimants who accept an offer to repair
25 an alleged construction defect to provide the offeror
26 reasonable access to the claimant’s property during a
27 specified timeframe to perform the repair; providing
28 that such claimants may proceed with an action against
29 an offeror without further notice if the payment or
30 repairs do not occur within the agreed-upon timetable;
31 providing exceptions; prohibiting a claimant from
32 proceeding with an action against an offeror if the
33 offeror makes payment or completes the repairs within
34 the agreed-upon timetable in the accepted settlement
35 offer; providing that if such persons served by such
36 claimants obtain the required building permits and
37 certificate of occupancy, and the local government
38 approves the plans, the construction project passes
39 all required inspections under the code; providing
40 applicability; making technical changes; reenacting
41 and amending s. 558.005, F.S.; requiring claimants
42 representing more than 20 parcels and any parties
43 served with a notice of claim alleging a construction
44 defect to agree to preaction mediation in writing;
45 requiring such parties served to deposit sufficient
46 funds in an escrow account and managed by an escrow
47 agent for a specified purpose; providing when funds
48 may be distributed; requiring such parties to contract
49 with a licensed engineer or construction management
50 firm to certify the status of the completion of each
51 agreed-upon defective condition and damage; providing
52 that any remaining funds in the escrow account be
53 released back to the payor; providing an effective
54 date.
55
56 Be It Enacted by the Legislature of the State of Florida:
57
58 Section 1. Section 558.003, Florida Statutes, is amended to
59 read:
60 558.003 Action; compliance.—A claimant may not file an
61 action subject to this chapter without first complying with the
62 requirements of this chapter. If a claimant files an action
63 alleging a construction defect without first complying with the
64 requirements of this chapter, on timely motion by a party to the
65 action the court shall stay the action, without prejudice, and
66 the action may not proceed until the claimant has complied with
67 such requirements. The notice requirement is not intended to
68 interfere with an owner’s ability to complete a project that has
69 not been substantially completed. The notice is not required for
70 a project that has not reached the stage of completion of the
71 building or improvement. A deviation from initial plans and
72 specifications, including, but not limited to, substitution of
73 products or components, is not considered a construction defect
74 as defined in s. 558.002.
75 Section 2. Subsections (1) through (5) and (8) of section
76 558.004, Florida Statutes, are amended, and subsection (16) is
77 added to that section, to read:
78 558.004 Notice and opportunity to repair.—
79 (1)(a) In actions brought alleging a construction defect,
80 the claimant must shall, at least 60 days before filing any
81 action, or at least 180 120 days before filing an action
82 involving an association representing more than 20 parcels,
83 serve written notice of claim on the developer, contractor,
84 subcontractor, supplier, or design professional, as applicable,
85 which notice must shall refer to this chapter. If the
86 construction defect claim arises from work performed under a
87 contract, the written notice of claim must be served on the
88 person with whom the claimant contracted.
89 (b) The notice of claim must describe in reasonable detail
90 the nature of each alleged construction defect and, if known,
91 the damage or loss resulting from the defect. Based upon at
92 least a visual inspection by the claimant or its agents, the
93 notice of claim must identify the location of each alleged
94 construction defect sufficiently to enable the responding
95 parties to locate the alleged defect without undue burden. For
96 associations representing more than 20 parcels, the notice of
97 claim must describe with specificity the locations of and known
98 damages from the alleged defective condition, including, but not
99 limited to, those floors and units in the buildings where the
100 defective condition and damages are located. The claimant has no
101 obligation to perform destructive or other testing for purposes
102 of this notice.
103 (c) The claimant must attempt shall endeavor to serve the
104 notice of claim within 15 days after discovery of an alleged
105 defect, but the failure to serve notice of claim within 15 days
106 does not bar the filing of an action, subject to s. 558.003.
107 This subsection does not preclude a claimant from filing an
108 action sooner than 60 days, or 120 days as applicable, after
109 service of written notice as expressly provided in subsection
110 (6), subsection (7), or subsection (8).
111 (d) A notice of claim served pursuant to this chapter does
112 shall not toll any statute of repose period under chapter 95.
113 (2) Within 30 days after service of the notice of claim, or
114 within 75 50 days after service of the notice of claim involving
115 an association representing more than 20 parcels, the person
116 served with the notice of claim under subsection (1) is entitled
117 to perform a reasonable inspection of the property and common
118 elements, or of each unit subject to the claim to assess each
119 alleged construction defect. An association’s right to access
120 property for either maintenance or repair includes the authority
121 to grant access for the inspection. The claimant shall provide
122 the person served with notice under subsection (1) and such
123 person’s contractors or agents reasonable access to the property
124 during normal working hours to inspect the property to determine
125 the nature and cause of each alleged construction defect and the
126 nature and extent of any repairs, remediation, or replacements
127 necessary to remedy each defect. The person served with notice
128 under subsection (1) shall reasonably coordinate the timing and
129 manner of any and all inspections with the claimant to minimize
130 the number of inspections. The inspection may include
131 destructive testing by mutual agreement under the following
132 reasonable terms and conditions:
133 (a) If the person served with notice under subsection (1)
134 determines that destructive testing is necessary to determine
135 the nature and cause of the alleged defects, such person must
136 shall notify the claimant in writing.
137 (b) The notice must shall describe the destructive testing
138 to be performed, the person selected to do the testing, the
139 estimated anticipated damage and repairs to or restoration of
140 the property resulting from the testing, the estimated amount of
141 time necessary for the testing and to complete the repairs or
142 restoration, and the financial responsibility offered for
143 covering the costs of repairs or restoration.
144 (c) If the claimant promptly objects to the person selected
145 to perform the destructive testing, the person served with
146 notice under subsection (1) must shall provide the claimant with
147 a list of three qualified persons from which the claimant may
148 select one such person to perform the testing. The person
149 selected to perform the testing shall operate as an agent or
150 subcontractor of the person served with notice under subsection
151 (1) and shall communicate with, submit any reports to, and be
152 solely responsible to the person served with notice.
153 (d) The testing must shall be done at a mutually agreeable
154 time.
155 (e) The claimant or a representative of the claimant may be
156 present to observe the destructive testing.
157 (f) The destructive testing may shall not render the
158 property uninhabitable.
159 (g) There are shall be no construction lien rights under
160 part I of chapter 713 for the destructive testing caused by a
161 person served with notice under subsection (1) or for restoring
162 the area destructively tested to the condition existing before
163 prior to testing, except to the extent the owner contracts for
164 the destructive testing or restoration.
165
166 If the claimant refuses to agree and thereafter permit
167 reasonable destructive testing, the claimant has shall have no
168 claim for damages which could have been avoided or mitigated had
169 destructive testing been allowed when requested and had a
170 feasible remedy been promptly implemented.
171 (3) Within 10 days after service of the notice of claim, or
172 within 45 30 days after service of the notice of claim involving
173 an association representing more than 20 parcels, the person
174 served with notice under subsection (1) may serve a copy of the
175 notice of claim to each developer, contractor, subcontractor,
176 supplier, or design professional whom it reasonably believes is
177 responsible for each defect specified in the notice of claim and
178 must shall note the specific defect for which it believes the
179 particular developer, contractor, subcontractor, supplier, or
180 design professional is responsible. The notice described in this
181 subsection may not be construed as an admission of any kind.
182 Each such contractor, subcontractor, supplier, and design
183 professional may inspect the property as provided in subsection
184 (2).
185 (4) Within 15 days after service of a copy of the notice of
186 claim pursuant to subsection (3), or within 45 30 days after
187 service of the copy of the notice of claim involving an
188 association representing more than 20 parcels, the developer,
189 contractor, subcontractor, supplier, or design professional must
190 serve a written response to the person who served a copy of the
191 notice of claim. The written response must include a report, if
192 any, of the scope of any inspection of the property and the
193 findings and results of the inspection. The written response
194 must include one or more of the offers or statements specified
195 in paragraphs (5)(a)-(e), as chosen by the responding developer,
196 contractor, subcontractor, supplier, or design professional,
197 with all of the information required for that offer or
198 statement.
199 (5) Within 45 days after service of the notice of claim, or
200 within 90 75 days after service of a copy of the notice of claim
201 involving an association representing more than 20 parcels, the
202 person who was served the notice under subsection (1) must serve
203 a written response to the claimant. The response must shall be
204 served to the attention of the person who signed the notice of
205 claim, unless otherwise designated in the notice of claim. The
206 written response must provide:
207 (a) A written offer to remedy the alleged construction
208 defect at no cost to the claimant, a detailed description of the
209 proposed repairs necessary to remedy the defect, and a timetable
210 for the completion of such repairs;
211 (b) A written offer to compromise and settle the claim by
212 monetary payment, that will not obligate the person’s insurer,
213 and a timetable for making payment;
214 (c) A written offer to compromise and settle the claim by a
215 combination of repairs and monetary payment, that will not
216 obligate the person’s insurer, that includes a detailed
217 description of the proposed repairs and a timetable for the
218 completion of such repairs and making payment;
219 (d) A written statement that the person disputes the claim
220 and will not remedy the defect or compromise and settle the
221 claim; or
222 (e) A written statement that a monetary payment, including
223 insurance proceeds, if any, will be determined by the person’s
224 insurer within 30 days after notification to the insurer by
225 means of serving the claim, which service must shall occur at
226 the same time the claimant is notified of this settlement
227 option, which the claimant may accept or reject. A written
228 statement under this paragraph may also include an offer under
229 paragraph (c), but such offer is shall be contingent upon the
230 claimant also accepting the determination of the insurer whether
231 to make any monetary payment in addition thereto. If the insurer
232 for the person served with the claim makes no response within
233 the 30 days following service, then the claimant is shall be
234 deemed to have met all conditions precedent to commencing an
235 action.
236 (8)(a) If the claimant timely and properly accepts the
237 offer to repair an alleged construction defect, the claimant
238 must shall provide the offeror and the offeror’s agents
239 reasonable access to the claimant’s property during normal
240 working hours to perform the repair by the agreed-upon timetable
241 as stated in the offer. If the offeror does not make the payment
242 or repair the defect within the agreed time and in the agreed
243 manner, except for reasonable delays beyond the control of the
244 offeror, including, but not limited to, weather conditions,
245 delivery of materials, claimant’s actions, or issuance of any
246 required permits, the claimant may, without further notice,
247 proceed with an action against the offeror based upon the claim
248 in the notice of claim. If the offeror makes payment or repairs
249 the defect within the agreed time and in the agreed manner, the
250 claimant is barred from proceeding with an action for the claim
251 described in the notice of claim or as otherwise provided in the
252 accepted settlement offer.
253 (b) For associations representing more than 20 parcels, if
254 the claimant timely and properly accepts the offer to repair an
255 alleged construction defect pursuant to paragraph (a), the
256 claimant must provide the offeror and the offeror’s agents,
257 including the developer, contractor, subcontractor, suppliers,
258 or design professional, reasonable access to the claimant’s
259 property, including common elements, association property, and
260 individual units, during normal working hours to perform the
261 repair according to the agreed-upon timetable as stated in the
262 offer. If the offeror does not make the payment or repair the
263 defect within the agreed time and in the agreed manner, except
264 for reasonable delays beyond the control of the offeror,
265 including, but not limited to, weather conditions, delivery of
266 materials, claimant’s actions, or issuance of any required
267 permits, the claimant may, without further notice, proceed with
268 an action against the offeror based upon the claim in the notice
269 of claim. If the offeror makes payment or repairs the defect
270 within the agreed-upon timetable and in the agreed manner, the
271 claimant is barred from proceeding with an action for the claim
272 described in the notice of claim or as otherwise provided in the
273 accepted settlement offer.
274 (16) If the person served with the notice of claim in
275 subsection (1) obtains the required building permits and
276 certificate of occupancy, and a local government or public
277 agency with authority to enforce the Florida Building Code
278 approves the plans, the construction project passes all required
279 inspections under the code. If there is no personal injury or
280 damage to property other than the property that is the subject
281 of the permits, plans, and inspections, this chapter does not
282 apply unless the person or party knew or should have known that
283 the material violation existed.
284 Section 3. Subsection (4) of section 558.005, Florida
285 Statutes, is amended, subsections (7), (8), and (9) are added to
286 that section, and subsection (6) of that section is reenacted,
287 to read:
288 558.005 Contract provisions; application.—
289 (4) At any time after the scope of the alleged defects has
290 been determined and sufficiently described by the claimant and
291 receipt of a notice of claim is acknowledged by the person to
292 whom notice is served or otherwise must be served under s.
293 558.004(1), a claimant and such person the person to whom notice
294 is served or otherwise must be served under s. 558.004(1) may
295 agree in writing to preaction mediation or otherwise alter the
296 procedure for the notice of claim process described in this
297 chapter. However, for associations that represent more than 20
298 parcels, if the scope of the alleged defects has been determined
299 and sufficiently described by the claimant and receipt of a
300 notice of claim is acknowledged by the person to whom notice is
301 served under s. 558.004(1), a claimant and such person must
302 agree in writing to preaction mediation.
303 (6) Notwithstanding s. 558.003, unless the parties agree
304 that this chapter does not apply, after October 1, 2009, any
305 written contract for improvement of real property entered into
306 between an owner and a contractor, or between an owner and a
307 design professional, must contain substantially the following
308 notice: “ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE
309 NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES.”
310 The failure to include in the contract the notice provided in
311 this subsection does not subject the contracting owner,
312 contractor, or design professional to any penalty. The purpose
313 of the contractual notice is to promote awareness of the
314 procedure, not to be a penalty.
315 (7) Upon agreement between the parties that such persons
316 served are responsible for the costs associated with the alleged
317 defective condition, the persons served shall deposit sufficient
318 funds in an escrow account to be managed by an escrow agent for
319 the purpose of protecting and distributing the funds. The funds
320 may be released from escrow only as follows:
321 (a) For remediation or repairs of the agreed-upon defective
322 condition as determined by the settlement; or
323 (b) For remediation or repairs of known damages occurring
324 as a consequence of the agreed-upon defective condition as
325 determined by the settlement.
326 (8) The parties shall contract with a third-party licensed
327 engineer as defined in s. 471.005 or a construction management
328 entity as defined in s. 255.32 to confirm and certify the status
329 of completion of each identified and agreed-upon defective
330 condition and damages occurring as a consequence of the
331 defective condition.
332 (9) Upon completion of the remediation or repair of the
333 defective condition, any remaining funds in the escrow account
334 must be released by the agent back to the payor.
335 Section 4. This act shall take effect July 1, 2025.