Bill Text: FL S0948 | 2020 | Regular Session | Introduced
Bill Title: Construction Defects
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2020-03-14 - Died in Community Affairs [S0948 Detail]
Download: Florida-2020-S0948-Introduced.html
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. 16 17 Be It Enacted by the Legislature of the State of Florida: 18 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 or38damage to property other than the property that is the subject39of 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 sounless the person or party knew or should have known that46the 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 specificreasonabledetail 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. 131 132 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.