HB 1899

1	A bill to be entitled
2	An act relating to construction defects; amending s.
3	558.001, F.S.; revising legislative findings and
4	declarations; amending s. 558.002, F.S.; revising
5	definitions; amending s. 558.003, F.S.; providing
6	requirements for filing actions alleging construction
7	defects; requiring abatement, upon timely motion, of
8	certain actions filed that do not comply with certain
9	requirements; amending s. 558.004, F.S.; revising
10	requirements, procedures, criteria, and limitations in
11	provisions relating to notice and opportunity to repair
12	construction defects in certain structures; providing
13	requirements and procedures for making, accepting, or
14	rejecting settlement offers; providing for consequences of
15	certain actions relating to settlement offers; specifying
16	legal obligation to make certain repairs or monetary
17	payments under certain circumstances; providing a mutual
18	duty to exchange certain discoverable evidence; providing
19	requirements and limitations; amending s. 558.005, F.S.;
20	revising certain contract content provisions; providing a
21	notice form; providing application; providing
22	severability; providing an effective date.
23
24	Be It Enacted by the Legislature of the State of Florida:
25
26	Section 1.  Section 558.001, Florida Statutes, is amended
27	to read:
28	558.001  Legislative findings and declaration.--The
29	Legislature finds that it is beneficial to have an alternative
30	method to resolve construction disputes that would reduce the
31	need for litigation as well as protect the rights of homeowners.
32	An effective alternative dispute resolution mechanism in certain
33	construction defect matters should involve the claimant filing a
34	notice of claim with the contractor, subcontractor, supplier, or
35	design professional that the claimant asserts is responsible for
36	the defect, and should provide the contractor, subcontractor,
37	supplier, or design professional with an opportunity to resolve
38	the claim without resort to further legal process.
39	Section 2.  Section 558.002, Florida Statutes, is amended
40	to read:
41	558.002  Definitions.--As used in this chapter act, the
42	term:
43	(1)  "Action" means any civil action or arbitration
44	proceeding for damages or indemnity asserting a claim for damage
45	to or loss of a dwelling or personal property caused by an
46	alleged construction defect, but does not include any
47	administrative action or any civil action or arbitration
48	proceeding asserting a claim for alleged personal injuries
49	arising out of an alleged construction defect.
50	(2)  "Association" has the same meaning as in s.
51	718.103(2), s. 719.103(2), s. 720.301(7), or s. 723.025.
52	(3)  "Claimant" means a homeowner, including a subsequent
53	purchaser, tenant, or association, who asserts a claim for
54	damages against a contractor, subcontractor, supplier, or design
55	professional concerning a construction defect or a subsequent
56	owner who asserts a claim for indemnification for such damages.
57	The term does not include a contractor, subcontractor, supplier,
58	or design professional.
59	(4)  "Construction defect" means a deficiency in, or a
60	deficiency arising out of, the design, specifications,
61	surveying, planning, supervision, observation of construction,
62	or construction, repair, alteration, or remodeling of a
63	dwelling, any appurtenance to the dwelling, or the real property
64	to which the dwelling or appurtenance is affixed resulting from:
65	(a)  Defective material, products, or components used in
66	the construction or remodeling;
67	(b)  A violation of the applicable codes in effect at the
68	time of construction or remodeling which gives rise to a cause
69	of action pursuant to s. 553.84;
70	(c)  A failure of the design of a dwelling to meet the
71	applicable professional standards of care at the time of
72	governmental approval; or
73	(d)  A failure to construct or remodel a dwelling in
74	accordance with accepted trade standards for good and
75	workmanlike construction at the time of construction.
76	(5)  "Contractor" means any person, as defined in s. 1.01,
77	firm, partnership, corporation, association, or other
78	organization that is legally engaged in the business of
79	designing, developing, constructing, manufacturing, repairing
80	selling, or remodeling dwellings or attachments thereto.
81	(6)  "Design professional" means a person, as defined in s.
82	1.01, licensed in this state as an architect, interior designer,
83	landscape architect, engineer, or surveyor.
84	(7)  "Dwelling" means a single-family house, manufactured
85	or modular home, duplex, triplex, quadruplex, or other
86	multifamily unit in a multifamily residential building designed
87	for residential use in which title to each individual unit is
88	transferred to the owner under a condominium or cooperative
89	system and includes common areas and improvements that are owned
90	or maintained by an association or by members of an association,
91	and also includes the systems, other components, and
92	improvements, and other structures or facilities, including, but
93	not limited to, recreational structures or facilities, that are
94	appurtenant to and located on the real property on which the
95	house, duplex, triplex, quadruplex, or other multifamily unit is
96	located, but are not necessarily part of the structure at the
97	time of completion of construction.
98	(8)  "Service" means personal service or delivery by
99	certified mail, return receipt requested, to the last known
100	address of the addressee.
101	(9)  "Subcontractor" means a person, as defined in s. 1.01,
102	who is a contractor who performs labor and supplies material
103	work on behalf of another contractor in the construction or
104	remodeling of a dwelling.
105	(10)  "Supplier" means a person, as defined in s. 1.01, who
106	provides only materials, equipment, or other supplies for the
107	construction or remodeling of a dwelling.
108	Section 3.  Section 558.003, Florida Statutes, is amended
109	to read:
110	558.003  Action; compliance abatement.--If A claimant may
111	not file files an action subject to this chapter without first
112	complying with the requirements of this chapter. If a claimant
113	files an action alleging a construction defect without first
114	complying with the requirements of this chapter act, on timely
115	motion by a party to the action the court shall abate the
116	action, without prejudice, and the action may not proceed until
117	the claimant has complied with such requirements.
118	Section 4.  Section 558.004, Florida Statutes, is amended
119	to read:
120	558.004  Notice and opportunity to repair.--
121	(1)  In actions brought alleging a against a contractor,
122	subcontractor, supplier, or design professional related to an
123	alleged construction defect, the claimant shall, at least no
124	later than 60 days before filing an action involving a single-
125	family home, an association representing 20 or fewer residential
126	parcels, a manufactured or modular home, a duplex, a triplex, or
127	a quadruplex, or at least 120 days before filing an action
128	involving an association representing more than 20 residential
129	parcel owners, serve written notice of claim on the contractor,
130	subcontractor, supplier, or design professional, as applicable,
131	which notice shall refer to this chapter. If the construction
132	defect claim arises from work performed under a contract, the
133	written notice of claim must be served on the person with whom
134	the claimant contracted. The notice of claim must describe the
135	claim in reasonable detail sufficient to determine the general
136	nature of each alleged construction defect and a description of
137	the damage or loss resulting from the defect, if known. The
138	claimant shall endeavor to serve the notice of claim within 15
139	days after discovery of an alleged defect, but the failure to
140	serve notice of claim within 15 days does not bar the filing of
141	an action, subject to s. 558.003. This subsection does not
142	preclude a claimant from filing an action sooner than 60 days,
143	or 120 days as applicable, after service of written notice as
144	expressly provided in subsection (6), subsection (7), or
145	subsection (8).
146	(2)  Within 30 5 business days after receipt service of the
147	notice of claim, the contractor, subcontractor, supplier, or
148	design professional may inspect involving a single-family home,
149	an association representing 20 or fewer residential parcels, a
150	manufactured or modular home, a duplex, a triplex, or a
151	quadruplex, or within 50 days after receipt of the notice of
152	claim involving an association representing more than 20
153	residential parcels, the person receiving the notice of claim
154	under subsection (1) is entitled to perform a reasonable
155	inspection of the dwelling or of each unit subject to the claim
156	to assess each alleged construction defect. An association's
157	right to access property for either maintenance or repair
158	includes the authority to grant access for the inspection. The
159	claimant shall provide the person receiving the notice under
160	subsection (1) and such person's contractor, subcontractor,
161	supplier, or design professional and its contractors or agents
162	reasonable access to the dwelling during normal working hours to
163	inspect the dwelling to determine the nature and cause of each
164	alleged construction defect and the nature and extent of any
165	repairs or replacements necessary to remedy each defect. The
166	person receiving notice under subsection (1) shall reasonably
167	coordinate the timing and manner of any and all inspections with
168	the claimant to minimize the number of inspections. The
169	inspection may include destructive testing by mutual agreement
170	under the following reasonable terms and conditions:
171	(a)  If the person receiving notice under subsection (1)
172	determines that destructive testing is necessary to determine
173	the nature and cause of the alleged defects, such person shall
174	notify the claimant in writing.
175	(b)  The notice shall describe the destructive testing to
176	be performed, the person selected to do the testing, the
177	estimated anticipated damage and repairs to the dwelling
178	resulting from the testing, the estimated amount of time
179	necessary for the testing and to complete the repairs, and the
180	financial responsibility offered for covering the costs of
181	repairs.
182	(c)  If the claimant promptly objects to the person
183	selected to perform the destructive testing, the person
184	receiving notice under subsection (1) shall provide the
185	claimant with a list of  three qualified persons from which the
186	claimant may select one such person to perform the testing. The
187	person selected to perform the testing shall operate as an
188	agent or subcontractor of the person receiving notice under
189	subsection (1) and shall communicate with, submit any reports
190	to and be solely responsible to the person receiving notice.
191	(d)  The testing shall be done at a mutually agreeable
192	time.
193	(e)  The claimant or a representative of the claimant may
194	be present to observe the destructive testing.
195	(f)  The destructive testing shall not render the
196	dwelling uninhabitable.
197
198	In the event the claimant fails or refuses to agree to
199	destructive testing, the claimant shall have no claim for
200	damages which could have been avoided or mitigated had
201	destructive testing been allowed when requested and had a
202	feasible remedy been promptly implemented. . Prior to
203	performing any destructive testing, the person who desires to
204	perform the testing shall notify the claimant in writing of the
205	type of testing to be performed, the anticipated damage to the
206	dwelling which will be caused by the testing, and the
207	anticipated repairs that will be necessary to repair any damage
208	caused by the testing. The person performing the testing is
209	responsible for repairing any damage to the dwelling caused by
210	the testing.
211	(3)  Within 10 days after receipt service of the notice of
212	claim involving a single-family home, an association
213	representing 20 or fewer residential parcels, a manufactured or
214	modular home, a duplex, a triplex, or a quadruplex, or within 30
215	days after receipt of the notice of claim involving an
216	association representing more than 20 residential parcels, the
217	person receiving the notice under subsection (1) may contractor,
218	subcontractor, supplier, and design professional must forward a
219	copy of the notice of claim to each contractor, subcontractor,
220	supplier, or design professional whom it reasonably believes is
221	responsible for each defect specified in the notice of claim and
222	shall note the specific defect for which it believes the
223	particular contractor, subcontractor, supplier, or design
224	professional is responsible. Each such contractor,
225	subcontractor, supplier, and design professional may inspect the
226	dwelling as provided in subsection (2) within 5 business days
227	after receiving a copy of the notice.
228	(4)  Within 15 5 business days after receiving a copy of
229	the notice of claim pursuant to subsection (3) involving a
230	single-family home, an association representing 20 or fewer
231	residential parcels, a manufactured or modular home, a duplex, a
232	triplex, or a quadruplex, or within 30 days after receipt of the
233	copy of the notice of claim involving an association
234	representing more than 20 residential parcels, the contractor,
235	subcontractor, supplier, or design professional must serve a
236	written response to the person contractor, subcontractor,
237	supplier, or design professional who forwarded served a copy of
238	the notice of claim. The written response shall include a
239	report, if any, of the scope of any inspection of the dwelling,
240	the findings and results of the inspection, a statement of
241	whether the contractor, subcontractor, supplier, or design
242	professional is willing to make repairs to the dwelling or
243	whether such he or she disputes the claim is disputed, a
244	description of any repairs they are he or she is willing to make
245	to remedy the alleged construction defect, and a timetable for
246	the completion of such repairs.
247	(5)  Within 45 25 days after receiving the notice of claim
248	involving a single-family home, an association representing 20
249	or fewer residential parcels, a manufactured or modular home, a
250	duplex, a triplex, or a quadruplex, or within 75 days after
251	receipt of a copy of the notice of claim involving an
252	association representing more than 20 residential parcels, the
253	person who received notice under subsection (1) each contractor,
254	subcontractor, supplier, or design professional must serve a
255	written response to the claimant. The response shall be served
256	to the attention of the person who signed the notice of claim,
257	unless otherwise designated in the notice of claim. The written
258	response must provide:
259	(a)  A written offer to remedy the alleged construction
260	defect at no cost to the claimant, including a report of the
261	scope of the inspection, the findings and results of the
262	inspection, a detailed description of the proposed repairs
263	necessary to remedy the defect, and a timetable for the
264	completion of such repairs;
265	(b)  A written offer to compromise and settle the claim by
266	monetary payment and a timetable for making payment to be paid
267	within 30 days after the claimant's acceptance of the offer; or
268	(c)  A written offer to compromise and settle the claim by
269	a combination of repairs and monetary payment, including a
270	detailed description of the proposed repairs and a timetable for
271	the completion of such repairs and making payment; or
272	(d)(c)  A written statement that the person contractor,
273	subcontractor, supplier, or design professional disputes the
274	claim and will not remedy the defect or compromise and settle
275	the claim.
276	(6)  If the contractor, subcontractor, supplier, or design
277	professional offers to remedy the alleged construction defect or
278	compromise and settle the claim by monetary payment, the written
279	response must contain a statement that the claimant shall be
280	deemed to have accepted the offer if, within 15 days, or 45 days
281	for an association, after service to the written response, the
282	claimant does not serve a written rejection of the offer on the
283	contractor, subcontractor, supplier, or design professional.
284	(6)(7)  If the person receiving a notice of claim pursuant
285	to subsection (1) contractor, subcontractor, supplier, or design
286	professional disputes the claim and will neither remedy the
287	defect nor compromise and settle the claim, or does not respond
288	to the claimant's notice of claim within the time provided in
289	subsection (5), the claimant may, without further notice,
290	proceed with an action against that person the contractor,
291	subcontractor, supplier, or design professional for the claim
292	described in the notice of claim. Nothing in this chapter shall
293	be construed to preclude a partial settlement or compromise of
294	the claim as agreed to by the parties and, in that event, the
295	claimant may, without further notice, proceed with an action on
296	the unresolved portions of the claim.
297	(7)(8)  A claimant who receives rejects a timely settlement
298	offer must accept or reject the offer made by serving the
299	contractor, subcontractor, supplier, or design professional must
300	serve written notice of such acceptance or rejection on the
301	person making the offer contractor, subcontractor, supplier, or
302	design professional within 15 days, or 45 days for an
303	association, after receiving service of the settlement offer. If
304	a claimant initiates an action without first accepting or
305	rejecting the offer, the court shall abate the action upon
306	timely motion until the claimant complies with this subsection.
307	The claimant's rejection must contain the settlement offer with
308	the word "rejected" printed on it. After service of the
309	rejection, the claimant may proceed with an action against the
310	contractor, subcontractor, supplier, or design professional for
311	the claims in the notice of claim without further notice.
312	(8)(9)  If the claimant timely and properly accepts the
313	offer to repair an alleged construction defect, the claimant
314	shall provide the offeror and the offeror's agents reasonable
315	access to the claimant's dwelling during normal working hours to
316	perform the repair by the agreed-upon timetable as stated in the
317	offer. If the offeror of a contractor, subcontractor, supplier,
318	or design professional and the contractor, subcontractor,
319	supplier, or design professional does not make the payment or
320	repair the defect within the agreed time and in the agreed
321	manner, except for reasonable delays beyond the control of the
322	offeror, including, but not limited to, weather conditions,
323	delivery of materials, claimant's actions, or issuance of any
324	required permits, the claimant may, without further notice,
325	proceed with an action against the offeror based upon
326	contractor, subcontractor, supplier, or design professional for
327	the claim in the notice of claim. If the offeror a claimant
328	accepts a contractor's, subcontractor's, supplier's, or design
329	professional's offer and the contractor, subcontractor,
330	supplier, or design professional makes payment or repairs the
331	defect within the agreed time and in the agreed manner, the
332	claimant is barred from proceeding with an action against the
333	contractor, subcontractor, supplier, or design professional for
334	the claim described in the notice of claim or as otherwise
335	provided in the accepted settlement offer.
336	(10)  If the claimant accepts the offer of a contractor,
337	subcontractor, supplier, or design professional to repair an
338	alleged construction defect, the claimant shall provide the
339	contractor, subcontractor, supplier, or design professional and
340	its contractors or other agents reasonable access to the
341	claimant's dwelling during normal working hours to perform the
342	repair by the agreed-upon timetable as stated in the offer.
343	(9)(11)  The failure of a claimant or a contractor,
344	subcontractor, supplier, or design professional to follow the
345	procedures in this section is admissible in an action. However,
346	This section does not prohibit or limit the claimant from making
347	any necessary emergency repairs to the dwelling as are required
348	to protect the health, safety, and welfare of the claimant. In
349	addition, any the offer of a contractor, subcontractor,
350	supplier, or design professional to remedy an alleged
351	construction defect or to compromise and settle the claim by
352	monetary payment does not constitute an admission of liability
353	with respect to the defect and is not admissible in an action to
354	show the existence of a defect.
355	(10)(12)  A claimant's mailing of the written notice of
356	claim under subsection (1) tolls the applicable statute of
357	limitations relating to any person covered by this chapter and
358	any bond surety until the later of:
359	(a)  Ninety Sixty days, or 120 days, as applicable, after
360	receipt of the contractor, subcontractor, supplier, or design
361	professional receives the notice of claim pursuant to subsection
362	(1); or
363	(b)  Thirty days after the end of the repair period or
364	payment period stated in the offer, if the claimant has accepted
365	the offer. By stipulation of the parties, the period may be
366	extended and the statute of limitations is tolled during the
367	extension.
368	(11)(13)  The procedures in this chapter section apply to
369	each alleged construction defect. However, a claimant may
370	include multiple defects in one notice of claim. The initial
371	list of construction defects may be amended by the claimant to
372	identify additional or new construction defects as they become
373	known to the claimant. The court shall allow the action to
374	proceed to trial only as to alleged construction defects that
375	were noticed and for which the claimant has complied with this
376	chapter and as to construction defects reasonably related to, or
377	caused by, the construction defects previously noticed. Nothing
378	in this subsection shall preclude subsequent or further actions.
379	(12)(14)  This chapter does Sections 558.001-558.003 of
380	this act do not:
381	(a)  Bar or limit any rights, including the right of
382	specific performance to the extent such right would be available
383	in the absence of this act, any causes of action, or any
384	theories on which liability may be based, except as specifically
385	provided in this chapter act;
386	(b)  Bar or limit any defense, or create any new defense,
387	except as specifically provided in this chapter act; or
388	(c)  Create any new rights, causes of action, or theories
389	on which liability may be based.
390	(13)  The person receiving notice of claim under subsection
391	(1) shall be deemed, for insurance purposes, to have been
392	legally obligated to make the repairs or the monetary payment as
393	if the claimant had recovered a judgment against such person in
394	the amount of the cost of the repairs, and the amount of the
395	monetary payment, if any, if the claimant has accepted the
396	offer.
397	(14)(15)  To the extent that an arbitration clause in a
398	contract for the sale, design, construction, or remodeling of a
399	dwelling conflicts with this section, this section shall
400	control.
401	(15)  Upon request, the claimant and the person receiving
402	notice pursuant to subsection (1) shall have a mutual duty to
403	exchange all available discoverable evidence relating to the
404	construction defects, including, but not limited to, expert
405	reports, photographs, information received pursuant to
406	subsection (4), and videotapes, if any. In the event of
407	subsequent litigation, any party who failed to provide such
408	evidence shall be subject to such sanctions as the court may
409	impose for a discovery violation. Expert reports exchanged
410	between the parties may not be used in any subsequent litigation
411	for any purpose, unless the expert, or a person affiliated with
412	the expert, testifies as a witness or the report is used or
413	relied upon by an expert who testifies on behalf of the party
414	for whom the report was prepared.
415	Section 5.  Section 558.005, Florida Statutes, is amended
416	to read:
417	558.005  Contract of sale; provisions; application.--
418	(1)  Except as otherwise provided in subsections (3) and
419	(4), the provisions of this chapter shall control every contract
420	for the design, construction, or remodeling of a dwelling
421	entered into on or after July 1, 2004, which contains the notice
422	as set forth in subsection (2) and is conspicuously set forth in
423	capitalized letters Upon entering into a contract for the sale,
424	design, construction, or remodeling of a dwelling, the
425	contractor, subcontractor, supplier, or design professional
426	shall provide notice to the owner of the dwelling of the
427	contractor's, subcontractor's, supplier's, or design
428	professional's right to offer to cure construction defects or
429	pay to settle alleged construction defects before a claimant may
430	commence an action against the contractor, subcontractor,
431	supplier, or design professional. Such notice must be
432	conspicuous and may be included as part of the contract.
433	(2)  The notice required by subsection (1) must be in
434	substantially the following form:
435
436	CHAPTER 558 NOTICE OF CLAIM
437	CHAPTER 558, FLORIDA STATUTES LAW CONTAINS IMPORTANT
438	REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL
439	ACTION FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST A
440	CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL FOR
441	AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE
442	YOU BRING ANY LEGAL ACTION FILE YOUR LAWSUIT, YOU MUST DELIVER
443	TO THE OTHER PARTY TO THIS CONTRACT CONTRACTOR, SUBCONTRACTOR,
444	SUPPLIER, OR DESIGN PROFESSIONAL A WRITTEN NOTICE REFERRING TO
445	CHAPTER 558 OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE
446	DEFECTIVE AND PROVIDE SUCH PERSON YOUR CONTRACTOR AND ANY
447	SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE
448	OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO
449	CONSIDER MAKING MAKE AN OFFER TO REPAIR OR PAY FOR THE ALLEGED
450	CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER
451	WHICH MAY BE MADE BY THE CONTRACTOR OR ANY SUBCONTRACTORS,
452	SUPPLIERS, OR DESIGN PROFESSIONALS. THERE ARE STRICT DEADLINES
453	AND PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND
454	FOLLOWED TO PROTECT YOUR INTERESTS.
455	(3)  After receipt of the initial notice of claim, a
456	claimant and the person receiving notice under s. 558.004(1)
457	may, by written mutual agreement, alter the procedure for the
458	notice of claim process described in this chapter.
459	(4)  This chapter applies to all actions accruing on or
460	after July 1, 2004, and all actions commenced on or after such
461	date, regardless of the date of sale, issuance of a certificate
462	of occupancy or its equivalent, or substantial completion of the
463	dwelling. Notwithstanding the notice requirements of this
464	section for contracts entered into on or after July 1, 2004,
465	this chapter applies to all actions accruing before July 1,
466	2004, but not yet commenced as of July 1, 2004, and failure to
467	include the notice requirements of this section in a contract
468	entered into prior to July 1, 2004, does not operate to bar the
469	procedures of this chapter from applying to all such actions.
470	Section 6.  If any provision of this act or the application
471	thereof to any person or circumstance is held invalid, the
472	invalidity does not affect other provisions or applications of
473	this act which can be given effect without the invalid provision
474	or application, and to this end the provisions of this act are
475	declared severable.
476	Section 7.  This act shall take effect July 1, 2004.

CODING: Words stricken are deletions; words underlined are additions.