Florida Senate - 2012 CS for SB 1196
By the Committee on Community Affairs; and Senator Bennett
578-02165-12 20121196c1
1 A bill to be entitled
2 An act relating to residential construction
3 warranties; creating s. 553.835, F.S.; providing
4 legislative findings; providing legislative intent to
5 affirm the limitations to the doctrine of implied
6 warranty of fitness and merchantability or
7 habitability associated with the construction and sale
8 of a new home; providing a definition; prohibiting a
9 cause of action in law or equity based upon the
10 doctrine of implied warranty of fitness and
11 merchantability or habitability for offsite
12 improvements; providing that the existing rights of
13 purchasers of homes or homeowners’ associations to
14 pursue certain causes of action are not altered or
15 limited; providing for applicability of the act;
16 providing for severability; providing an effective
17 date.
18
19 WHEREAS, the Legislature recognizes and agrees with the
20 limitations on the applicability of the doctrine of implied
21 warranty of fitness and merchantability or habitability for a
22 new home as established in the seminal cases of Gable v. Silver,
23 258 So.2d 11 (Fla. 4th DCA 1972) adopted and cert. dism, 264
24 So.2d 418 (Fla. 1972); Conklin v. Hurley, 428 So.2d 654 (Fla.
25 1983); and Port Sewall Harbor & Tennis Club Owners Ass’n v.
26 First Fed. S. & L. Ass’n., 463 So.2d 530 (Fla. 4th DCA 1985),
27 and does not wish to expand any prospective rights,
28 responsibilities, or liabilities resulting from these decisions,
29 and
30 WHEREAS, the recent decision by the Fifth District Court of
31 Appeal rendered in October of 2010, in Lakeview Reserve
32 Homeowners et. al. v. Maronda Homes, Inc., et. al., 48 So.3d 902
33 (Fla. 5th DCA, 2010), expands the doctrine of implied warranty
34 of fitness and merchantability or habitability for a new home to
35 the construction of roads, drainage systems, retention ponds,
36 and underground pipes, which the court described as essential
37 services, supporting a new home, and
38 WHEREAS, the Legislature finds, as a matter of public
39 policy, that the Maronda case goes beyond the fundamental
40 protections that are necessary for a purchaser of a new home and
41 that form the basis for imposing an implied warranty of fitness
42 and merchantability or habitability for a new home, and creates
43 uncertainty in the state’s fragile real estate and construction
44 industry, and
45 WHEREAS, it is the intent of the Legislature to reject the
46 decision by the Fifth District Court of Appeal in the Maronda
47 case insofar as it expands the doctrine of implied warranty and
48 fitness and merchantability or habitability for a new home to
49 include essential services as defined by the court, NOW
50 THEREFORE,
51
52 Be It Enacted by the Legislature of the State of Florida:
53
54 Section 1. Section 553.835, Florida Statutes, is created to
55 read:
56 553.835 Implied warranties.—
57 (1) The Legislature finds that the courts have reached
58 different conclusions concerning the scope and extent of the
59 common law doctrine of implied warranty of fitness and
60 merchantability or habitability for improvements immediately
61 supporting the structure of a new home, which creates
62 uncertainty in the state’s fragile real estate and construction
63 industry.
64 (2) It is the intent of the Legislature to affirm the
65 limitations to the doctrine of implied warranty of fitness and
66 merchantability or habitability associated with the construction
67 and sale of a new home.
68 (3) As used in this section, the term “offsite improvement”
69 means the street, road, sidewalk, drainage, utilities, or any
70 other improvement or structure that is not located on or under
71 the lot on which a new home is constructed, or that is located
72 on or under the lot but that does not immediately and directly
73 support the fitness and merchantability or habitability of the
74 home itself.
75 (4) There is no cause of action in law or equity available
76 to a purchaser of a home or to a homeowners’ association based
77 upon the doctrine or theory of implied warranty of fitness and
78 merchantability or habitability for damages to offsite
79 improvements. However, this section does not alter or limit the
80 existing rights of purchasers of homes or homeowners’
81 associations to pursue any other cause of action arising from
82 defects in offsite improvements based upon contract, tort, or
83 statute.
84 Section 2. If any provision of the act or its application
85 to any person or circumstance is held invalid, the invalidity
86 does not affect other provisions or applications of the act
87 which can be given effect without the invalid provision or
88 application, and to this end the provisions of this act are
89 severable.
90 Section 3. This act shall take effect July 1, 2012, and
91 applies to all cases accruing before, pending on, or filed after
92 that date.