Bill Text: FL S0736 | 2022 | Regular Session | Engrossed
Bill Title: Construction Defect and Building Code Violation Claims
Spectrum: Slight Partisan Bill (? 3-1)
Status: (Failed) 2022-03-14 - Died in returning Messages [S0736 Detail]
Download: Florida-2022-S0736-Engrossed.html
CS for CS for CS for SB 736 First Engrossed 2022736e1 1 A bill to be entitled 2 An act relating to construction defect and building 3 code violation claims; amending s. 95.11, F.S.; 4 revising the limitations period for certain actions 5 founded on the design, planning, or construction of an 6 improvement to real property; defining the terms 7 “completion of an improvement” and “single family 8 residence”; amending s. 553.84, F.S.; defining terms; 9 revising the circumstances under which a person has a 10 cause of action for a violation of the Florida 11 Building Code; providing construction; amending s. 12 558.004, F.S.; requiring a notice of claim to include 13 an inspection report that is verified by the person 14 conducting the inspection; specifying the required 15 contents of the report; providing that a bad faith 16 preparation of an inspection report constitutes 17 grounds for discipline; specifying that the claimant 18 and the person preparing the inspection report do not 19 have an obligation to perform certain testing; 20 requiring a claimant to include the reasons for 21 rejecting an offer in a notice rejecting a settlement 22 offer to remedy a construction defect; authorizing a 23 person served with a notice rejecting a settlement 24 offer to make a supplemental offer within a specified 25 timeframe; providing notice requirements for a 26 claimant who rejects a supplemental offer; requiring 27 the court to stay an action if a claimant initiates an 28 action without first accepting or rejecting a 29 supplemental offer; requiring a claimant who accepts a 30 certain offer to enter into a contract to complete 31 repairs to remedy an alleged construction defect; 32 requiring the offeror or insurer to pay the contractor 33 or contractors directly for the repairs; prohibiting 34 an offeror or insurer from requiring a claimant to 35 advance payment for repairs; requiring that the 36 repairs be completed within a specified timeframe; 37 creating s. 558.0046, F.S.; requiring a claimant to 38 repair a construction defect if the claimant receives 39 compensation for an alleged construction defect from 40 specified persons; providing that a claimant is liable 41 for damages resulting from failure to disclose a 42 construction defect to a purchaser of a property; 43 providing applicability; providing an effective date. 44 45 Be It Enacted by the Legislature of the State of Florida: 46 47 Section 1. Paragraph (c) of subsection (3) of section 48 95.11, Florida Statutes, is amended to read: 49 95.11 Limitations other than for the recovery of real 50 property.—Actions other than for recovery of real property shall 51 be commenced as follows: 52 (3) WITHIN FOUR YEARS.— 53 (c) An action founded on the design, planning, or 54 construction of an improvement to real property,withthe time 55 running from 45 days afterthe date of actual possession by the56owner,the date of completion of the improvement orthe issuance57of a certificate of occupancy,the date of abandonment of 58 construction if the improvement is not completed, except as 59 provided in subparagraphs 1.-5. 60 1. If the action involves a latent defect, the action must 61 be commenced within 7 years, and the time begins to run 45 days 62 after the completion of the improvement or the date of 63 abandonment of construction if the improvement is not completed. 64 2. If the action alleges a latent defect to a single family 65 residence and the person alleging the latent defect can show 66 that the engineer, architect, or contractor or his or her 67 employer fraudulently concealed the defect, the action may be 68 commenced within 10 years after the time for commencing an 69 action begins to run, provided that the action is commenced 70 within 1 year after the discovery of the fraudulent concealment 71 or within the time period in subparagraph 1. 72 3. If the action alleges a latent defect to an improvement 73 other than a single family residence and the person alleging the 74 latent defect can show that the engineer, architect, or 75 contractor or his or her employer fraudulently concealed the 76 defect, the action may be commenced at any time, provided that 77 the action is commenced within 1 year after the discovery of the 78 fraudulent concealment or within the time period in subparagraph 79 1. 80 4. If a single family residence is built by a professional 81 engineer, registered architect, or licensed contractor for 82 speculation or for use as a model home, not for use as the 83 person’s residence, and title is not transferred to an unrelated 84 party for more than 45 days after the issuance of the 85 certificate of occupancy or the closing or expiration of the 86 building permit, the time begins to run from the date that title 87 is transferred to an unrelated party. 88 5., or the date of completion of the contract or89termination of the contract between the professional engineer,90registered architect, or licensed contractor and his or her91employer, whichever date is latest; except that, when the action92involves a latent defect, the time runs from the time the defect93is discovered or should have been discovered with the exercise94of due diligence. In any event, the action must be commenced95within 10 years after the date of actual possession by the96owner, the date of the issuance of a certificate of occupancy,97the date of abandonment of construction if not completed, or the98date of completion of the contract or termination of the99contract between the professional engineer, registered100architect, or licensed contractor and his or her employer,101whichever date is latest. However,Counterclaims, cross-claims, 102 and third-party claims that arise out of the conduct, 103 transaction, or occurrence set out or attempted to be set out in 104 a pleading may be commenced up to 1 year after the pleading to 105 which such claims relate is served, even if such claims would 106 otherwise be time barred. 107 6. As used in this paragraph, the term: 108 a. “Completion of an improvement” means issuance of the 109 certificate of occupancy or certificate of completion for the 110 improvement, or the closing as defined in s. 553.79(17)(a), or 111 expiration of the building permit for the improvement if the 112 improvement is not required to have a certificate of occupancy 113 or certificate of completion. 114 b. “Single family residence” means a one-family, two 115 family, or three-family residence not exceeding three habitable 116 stories above ground and no more than one uninhabitable story 117 and accessory use structures made in connection with the 118 residenceWith respect to actions founded on the design,119planning, or construction of an improvement to real property, if120such construction is performed pursuant to a duly issued121building permit and if a local enforcement agency, state122enforcement agency, or special inspector, as those terms are123defined in s. 553.71, has issued a final certificate of124occupancy or certificate of completion, then as to the125construction which is within the scope of such building permit126and certificate, the correction of defects to completed work or127repair of completed work, whether performed under warranty or128otherwise, does not extend the period of time within which an129action must be commenced. Completion of the contract means the130later of the date of final performance of all the contracted131services or the date that final payment for such services132becomes due without regard to the date final payment is made. 133 Section 2. Section 553.84, Florida Statutes, is amended to 134 read: 135 553.84 Statutory civil action.— 136 (1) As used in this section, the term: 137 (a) “Material violation” means a violation that exists 138 within a completed building, structure, or facility which may 139 reasonably result, or has resulted, in physical harm to a person 140 or significant damage to the performance of a building or its 141 systems. 142 (b) “Performance” means that the building, structure, or 143 facility, or its system, functions as it is intended and is able 144 to be used for its designed purpose. 145 (c) “Significant damage” means a level of adverse impact to 146 a building, structure, or facility, or its system which results 147 or could reasonably result in economic damage or loss that 148 exceeds the common expectations, and the cost of restoring the 149 damage or preventing such damage to the building, structure, or 150 facility, or its system, would equal or exceed 25 percent of the 151 market value of the building, structure, or facility, or its 152 system, if built in accordance with the Florida Building Code. 153 The term does not include Florida Building Code violations that 154 are cosmetic, minimal, or inconsequential to the overall 155 performance of a building, structure, or facility, or its 156 system. 157 (2)(a) Notwithstanding any other remedies available and 158 except as provided in paragraph (b), any person or party, in an 159 individual capacity or on behalf of a class of persons or 160 parties, damaged as a result of a violation of this part or a 161 material violation of the Florida Building Code, has a cause of 162 actionin any court of competent jurisdictionagainst the person 163 or party who committed the violation. 164 (b) This section does not authorize a cause of action 165 against a; however, if theperson or party who obtainedobtains166 the required building permits and any local government or public 167 agency havingwithauthority to enforce the Florida Building 168 Code approvedapprovesthe plans and, ifthe construction 169 project passedpassesall required inspections under the code, 170and if there is no personal injury or damage to property other171than the property that is the subject of the permits, plans, and172inspections, this section does not applyunless the person or 173 party knew or should have known that the violation existed. 174 Section 3. Present subsections (8) through (15) of section 175 558.004, Florida Statutes, are redesignated as subsections (9) 176 through (16), respectively, a new subsection (8) is added to 177 that section, and paragraphs (b) and (c) of subsection (1) and 178 subsection (7) of that section are amended, to read: 179 558.004 Notice and opportunity to repair.— 180 (1) 181 (b)1. The notice of claim must include an inspection report 182 that is verified pursuant to s. 92.525 by a contractor, 183 engineer, building code inspector, or other inspector who has a 184 state license and experience relevant to the type of 185 construction that is the basis of the claim. The report must 186 include all of the following: 187 a. A short statement describing the relevant experience and 188 licenses of the person conducting the inspection. 189 b. A description of each alleged construction defect; a 190 clear description of the location of the defect; and, if known, 191 an explanation of the damage resulting from the defect. 192 c. Documentation of the defect with photographs or videos, 193 and the results of any testing which pertain to the defect. 194 d. A description of how the inspection was conducted, 195 including a description of any specialized equipment used during 196 the inspection or of any tests conducted. 197 e. An explanation of whether or to what extent and how the 198 property owner or person acting at the direction of the property 199 owner inspected, maintained, repaired, or renovated a portion of 200 the structure containing the alleged defect since the owner took 201 possession of the structure. 202 2. The preparation of an inspection report in bad faith 203 constitutes grounds for discipline by any relevant licensing 204 board or agency. 205 3. The claimant and the person preparing the inspection 206 report do not have andescribe in reasonable detail the nature207of each alleged construction defect and, if known, the damage or208loss resulting from the defect. Based upon at least a visual209inspection by the claimant or its agents, the notice of claim210must identify the location of each alleged construction defect211sufficiently to enable the responding parties to locate the212alleged defect without undue burden. The claimant has no213 obligation to perform destructive or other testing for purposes 214 of this notice. 215 (c) The claimant shall endeavor to serve the notice of 216 claim within 15 days after discovery of an alleged defect, but 217 the failure to serve notice of claim within 15 days does not bar 218 the filing of an action, subject to s. 558.003. This subsection 219 does not preclude a claimant from filing an action sooner than 220 60 days, or 120 days as applicable, after service of written 221 notice as expressly provided in subsection (6), subsection (7), 222 or subsection (9)(8). 223 (7)(a) A claimant who receives a timely settlement offer 224 must accept or reject the offer by serving written notice of 225 such acceptance or rejection on the person making the offer 226 within 45 days after receiving the settlement offer. 227 (b) If the claimant rejects the settlement offer, the 228 claimant must include the reasons for rejecting the offer in the 229 notice rejecting the offer. If the claimant believes that the 230 settlement offer omitted reference to any portion of the claim 231 or was unreasonable in any manner, the claimant must include in 232 the notice the items that the claimant believes were omitted and 233 state in detail all known reasons why the claimant believes the 234 settlement offer is unreasonable. 235 (c) Upon receipt of a claimant’s notice of rejection and 236 the reasons for such rejection, the person served with the 237 rejection, within 15 days after receipt of the notice, may make 238 a supplemental offer of repair or monetary payment, or both, to 239 the claimant. 240 (d) If the claimant rejects a supplemental offer to repair 241 the construction defect or to settle the claim by monetary 242 payment or a combination of both, the claimant must serve 243 written notice of the claimant’s rejection on the person making 244 the supplemental offer. The notice must include all known 245 reasons for the claimant’s rejection of the supplemental 246 settlement offer. 247 (e) If a claimant initiates an action without first 248 accepting or rejecting the offer or supplemental offer, the 249 court shall stay the action upon timely motion until the 250 claimant complies with this subsection. 251 (8) If a claimant accepts an offer made pursuant to 252 paragraph (5)(b), paragraph (5)(c), or paragraph (5)(e) or a 253 supplemental offer made pursuant to paragraph (7)(c), the 254 claimant must, within 90 days after the acceptance, enter into a 255 contract with one or more appropriately licensed contractors to 256 complete the repairs necessary to remedy the alleged 257 construction defect. The offeror or insurer shall pay directly 258 to the contractor or contractors, from the accepted monetary 259 payment, the amounts necessary to begin and to continue the 260 repairs as the work is performed and expenses are incurred. The 261 offeror or insurer may not require the claimant to advance 262 payment for the repairs. The repairs must be completed within 12 263 months after the claimant enters into the contract for repairs, 264 absent mutual agreement between the offeror or insurer and the 265 claimant. 266 Section 4. Section 558.0046, Florida Statutes, is created 267 to read: 268 558.0046 Duty to repair construction defect.—If a claimant 269 receives compensation for an alleged construction defect from a 270 contractor, a subcontractor, a supplier, a design professional, 271 or an insurer, the claimant must repair the defect. A claimant 272 who receives compensation and fails to fully repair the defect 273 is liable to a purchaser of the property for any damages 274 resulting from the failure to disclose the defect. 275 Section 5. (1) The amendments made by this act to s. 276 95.11(3)(c), Florida Statutes, apply to any action commenced on 277 or after July 1, 2022, regardless of when the cause of action 278 accrued. However, any action that would not have been barred 279 under s. 95.11(3)(c), Florida Statutes, before the amendments 280 made by this act to that section may be commenced before July 1, 281 2023. If such action is not commenced by July 1, 2023, and is 282 barred by the amendments made by this act to s. 95.11(3)(c), 283 Florida Statutes, the action is barred. 284 (2) Sections 2, 3, and 4 of this act apply to compensation 285 for construction defects received on or after July 1, 2022, and 286 to civil actions and proceedings for a construction defect or a 287 building code violation which are initiated on or after July 1, 288 2022. 289 Section 6. This act shall take effect July 1, 2022.