HB 709

1	A bill to be entitled
2	An act relating to construction defects; amending s.
3	558.002, F.S.; providing and revising definitions;
4	amending s. 558.003, F.S.; limiting application of certain
5	notices; amending s. 558.004, F.S.; revising requirements
6	and procedures for notice and opportunity to repair
7	certain defects; specifying that there are no construction
8	lien rights under certain provisions of law for certain
9	testing; providing an exception; revising requirements for
10	parties to exchange certain materials; providing
11	penalties; amending s. 558.005, F.S.; revising
12	requirements for application to certain claims for legal
13	relief; specifying certain notices required for certain
14	contracts; authorizing parties to agree to mediation;
15	revising application of notice requirements to certain
16	earlier contracts; specifying a required notice for
17	certain contracts; providing construction of the
18	requirement; providing an effective date.
19
20	Be It Enacted by the Legislature of the State of Florida:
21
22	Section 1.  Subsections (4) through (10) of section
23	558.002, Florida Statutes, are renumbered as subsections (5)
24	through (11), respectively, a new subsection (4) is added to
25	that section, and present subsection (8) of that section is
26	amended, to read:
27	558.002  Definitions.--As used in this chapter, the term:
28	(4)  "Completion of a building or improvement" means
29	issuance of a certificate of occupancy for the entire building
30	or improvement, or the equivalent authorization to occupy or use
31	the improvement, issued by the governmental body having
32	jurisdiction and, in jurisdictions where no certificate of
33	occupancy or the equivalent authorization is issued, means
34	substantial completion of construction, finishing, and equipping
35	of the building or improvement according to the plans and
36	specifications.
37	(9)(8)  "Service" means delivery by certified mail with a
38	United States Postal Service record of evidence of delivery or
39	attempted delivery, return receipt requested, to the last known
40	address of the addressee, by hand delivery, or by delivery by
41	any courier with written evidence of delivery.
42	Section 2.  Section 558.003, Florida Statutes, is amended
43	to read:
44	558.003  Action; compliance.--A claimant may not file an
45	action subject to this chapter without first complying with the
46	requirements of this chapter. If a claimant files an action
47	alleging a construction defect without first complying with the
48	requirements of this chapter, on timely motion by a party to the
49	action the court shall stay abate the action, without prejudice,
50	and the action may not proceed until the claimant has complied
51	with such requirements. The notice requirement is not intended
52	to interfere with an owner's ability to complete a project that
53	has not been substantially completed. The notice is not required
54	for a project that has not reached the stage of completion of
55	the building or improvement.
56	Section 3.  Section 558.004, Florida Statutes, is amended
57	to read:
58	558.004  Notice and opportunity to repair.--
59	(1)  In actions brought alleging a construction defect, the
60	claimant shall, at least 60 days before filing any action, or at
61	least 120 days before filing an action involving an association
62	representing more than 20 parcels, serve written notice of claim
63	on the contractor, subcontractor, supplier, or design
64	professional, as applicable, which notice shall refer to this
65	chapter. If the construction defect claim arises from work
66	performed under a contract, the written notice of claim must be
67	served on the person with whom the claimant contracted. The
68	notice of claim must describe the claim in reasonable detail
69	sufficient to determine the general nature of each alleged
70	construction defect and a description of the damage or loss
71	resulting from the defect, if known. The claimant shall endeavor
72	to serve the notice of claim within 15 days after discovery of
73	an alleged defect, but the failure to serve notice of claim
74	within 15 days does not bar the filing of an action, subject to
75	s. 558.003. This subsection does not preclude a claimant from
76	filing an action sooner than 60 days, or 120 days as applicable,
77	after service of written notice as expressly provided in
78	subsection (6), subsection (7), or subsection (8).
79	(2)  Within 30 days after service receipt of the notice of
80	claim, or within 50 days after service receipt of the notice of
81	claim involving an association representing more than 20
82	parcels, the person served with receiving the notice of claim
83	under subsection (1) is entitled to perform a reasonable
84	inspection of the property or of each unit subject to the claim
85	to assess each alleged construction defect. An association's
86	right to access property for either maintenance or repair
87	includes the authority to grant access for the inspection. The
88	claimant shall provide the person served with receiving the
89	notice under subsection (1) and such person's contractors or
90	agents reasonable access to the property during normal working
91	hours to inspect the property to determine the nature and cause
92	of each alleged construction defect and the nature and extent of
93	any repairs or replacements necessary to remedy each defect. The
94	person served with receiving notice under subsection (1) shall
95	reasonably coordinate the timing and manner of any and all
96	inspections with the claimant to minimize the number of
97	inspections. The inspection may include destructive testing by
98	mutual agreement under the following reasonable terms and
99	conditions:
100	(a)  If the person served with receiving notice under
101	subsection (1) determines that destructive testing is necessary
102	to determine the nature and cause of the alleged defects, such
103	person shall notify the claimant in writing.
104	(b)  The notice shall describe the destructive testing to
105	be performed, the person selected to do the testing, the
106	estimated anticipated damage and repairs to or restoration of
107	the property resulting from the testing, the estimated amount of
108	time 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
112	selected to perform the destructive testing, the person served
113	with receiving notice under subsection (1) shall provide the
114	claimant with a list of three qualified persons from which the
115	claimant may select one such person to perform the testing. The
116	person selected to perform the testing shall operate as an agent
117	or subcontractor of the person served with receiving notice
118	under subsection (1) and shall communicate with, submit any
119	reports to, and be solely responsible to the person served with
120	receiving notice.
121	(d)  The testing shall be done at a mutually agreeable
122	time.
123	(e)  The claimant or a representative of the claimant may
124	be present to observe the destructive testing.
125	(f)  The destructive testing shall not render the property
126	uninhabitable.
127	(g)  There shall be no construction lien rights under part
128	I of chapter 713 for the destructive testing caused by a person
129	served with notice under subsection (1) or for restoring the
130	area destructively tested to the condition existing prior to
131	testing, except to the extent the owner contracts for the
132	destructive testing or restoration.
133
134	If In the event the claimant fails or refuses to agree and
135	thereafter permit reasonable to destructive testing, the
136	claimant shall have no claim for damages which could have been
137	avoided or mitigated had destructive testing been allowed when
138	requested and had a feasible remedy been promptly implemented.
139	(3)  Within 10 days after service receipt of the notice of
140	claim, or within 30 days after service receipt of the notice of
141	claim involving an association representing more than 20
142	parcels, the person served with receiving the notice under
143	subsection (1) may serve forward a copy of the notice of claim
144	to each contractor, subcontractor, supplier, or design
145	professional whom it reasonably believes is responsible for each
146	defect specified in the notice of claim and shall note the
147	specific defect for which it believes the particular contractor,
148	subcontractor, supplier, or design professional is responsible.
149	The notice described in this subsection may not be construed as
150	an admission of any kind. Each such contractor, subcontractor,
151	supplier, and design professional may inspect the property as
152	provided in subsection (2).
153	(4)  Within 15 days after service of receiving a copy of
154	the notice of claim pursuant to subsection (3), or within 30
155	days after service receipt of the copy of the notice of claim
156	involving an association representing more than 20 parcels, the
157	contractor, subcontractor, supplier, or design professional must
158	serve a written response to the person who served forwarded a
159	copy of the notice of claim. The written response shall include
160	a report, if any, of the scope of any inspection of the
161	property, the findings and results of the inspection, a
162	statement of whether the contractor, subcontractor, supplier, or
163	design professional is willing to make repairs to the property
164	or whether such claim is disputed, a description of any repairs
165	they are willing to make to remedy the alleged construction
166	defect, and a timetable for the completion of such repairs. This
167	response may also be served on the initial claimant by the
168	contractor.
169	(5)  Within 45 days after service of receiving the notice
170	of claim, or within 75 days after service receipt of a copy of
171	the notice of claim involving an association representing more
172	than 20 parcels, the person who was served the received notice
173	under subsection (1) must serve a written response to the
174	claimant. The response shall be served to the attention of the
175	person who signed the notice of claim, unless otherwise
176	designated in the notice of claim. The written response must
177	provide:
178	(a)  A written offer to remedy the alleged construction
179	defect at no cost to the claimant, a detailed description of the
180	proposed repairs necessary to remedy the defect, and a timetable
181	for the completion of such repairs;
182	(b)  A written offer to compromise and settle the claim by
183	monetary payment, that will not obligate the person's insurer,
184	and a timetable for making payment;
185	(c)  A written offer to compromise and settle the claim by
186	a combination of repairs and monetary payment, that will not
187	obligate the person's insurer, that includes a detailed
188	description of the proposed repairs and a timetable for the
189	completion of such repairs and making payment;
190	(d)  A written statement that the person disputes the claim
191	and will not remedy the defect or compromise and settle the
192	claim; or
193	(e)  A written statement that a monetary payment, including
194	insurance proceeds, if any, will be determined by the person's
195	insurer within 30 days after notification to the insurer by
196	means of serving forwarding the claim, which service
197	notification shall occur at the same time the claimant is
198	notified of this settlement option, which the claimant may can
199	accept or reject. A written statement under this paragraph may
200	also include an offer under paragraph (c), but such offer shall
201	be contingent upon the claimant also accepting the determination
202	of the insurer whether to make any monetary payment in addition
203	thereto. If the insurer for the person served with receiving the
204	claim makes no response within the 30 days following service
205	notification, then the claimant shall be deemed to have met all
206	conditions precedent to commencing an action.
207	(6)  If the person served with receiving a notice of claim
208	pursuant to subsection (1) disputes the claim and will neither
209	remedy the defect nor compromise and settle the claim, or does
210	not respond to the claimant's notice of claim within the time
211	provided in subsection (5), the claimant may, without further
212	notice, proceed with an action against that person for the claim
213	described in the notice of claim. Nothing in this chapter shall
214	be construed to preclude a partial settlement or compromise of
215	the claim as agreed to by the parties and, in that event, the
216	claimant may, without further notice, proceed with an action on
217	the unresolved portions of the claim.
218	(7)  A claimant who receives a timely settlement offer must
219	accept or reject the offer by serving written notice of such
220	acceptance or rejection on the person making the offer within 45
221	days after receiving the settlement offer. If a claimant
222	initiates an action without first accepting or rejecting the
223	offer, the court shall stay abate the action upon timely motion
224	until the claimant complies with this subsection.
225	(8)  If the claimant timely and properly accepts the offer
226	to repair an alleged construction defect, the claimant shall
227	provide the offeror and the offeror's agents reasonable access
228	to the claimant's property during normal working hours to
229	perform the repair by the agreed-upon timetable as stated in the
230	offer. If the offeror does not make the payment or repair the
231	defect within the agreed time and in the agreed manner, except
232	for reasonable delays beyond the control of the offeror,
233	including, but not limited to, weather conditions, delivery of
234	materials, claimant's actions, or issuance of any required
235	permits, the claimant may, without further notice, proceed with
236	an action against the offeror based upon the claim in the notice
237	of claim. If the offeror makes payment or repairs the defect
238	within the agreed time and in the agreed manner, the claimant is
239	barred from proceeding with an action for the claim described in
240	the notice of claim or as otherwise provided in the accepted
241	settlement offer.
242	(9)  This section does not prohibit or limit the claimant
243	from making any necessary emergency repairs to the property as
244	are required to protect the health, safety, and welfare of the
245	claimant. In addition, any offer or failure to offer pursuant to
246	subsection (5) to remedy an alleged construction defect or to
247	compromise and settle the claim by monetary payment does not
248	constitute an admission of liability with respect to the defect
249	and is not admissible in an action brought under this chapter.
250	(10)  A claimant's service mailing of the written notice of
251	claim under subsection (1) tolls the applicable statute of
252	limitations relating to any person covered by this chapter and
253	any bond surety until the later of:
254	(a)  Ninety days, or 120 days, as applicable, after service
255	receipt of the notice of claim pursuant to subsection (1); or
256	(b)  Thirty days after the end of the repair period or
257	payment period stated in the offer, if the claimant has accepted
258	the offer. By stipulation of the parties, the period may be
259	extended and the statute of limitations is tolled during the
260	extension.
261	(11)  The procedures in this chapter apply to each alleged
262	construction defect. However, a claimant may include multiple
263	defects in one notice of claim. The initial list of construction
264	defects may be amended by the claimant to identify additional or
265	new construction defects as they become known to the claimant.
266	The court shall allow the action to proceed to trial only as to
267	alleged construction defects that were noticed and for which the
268	claimant has complied with this chapter and as to construction
269	defects reasonably related to, or caused by, the construction
270	defects previously noticed. Nothing in this subsection shall
271	preclude subsequent or further actions.
272	(12)  This chapter does not:
273	(a)  Bar or limit any rights, including the right of
274	specific performance to the extent such right would be available
275	in the absence of this chapter, any causes of action, or any
276	theories on which liability may be based, except as specifically
277	provided in this chapter;
278	(b)  Bar or limit any defense, or create any new defense,
279	except as specifically provided in this chapter; or
280	(c)  Create any new rights, causes of action, or theories
281	on which liability may be based.
282	(13)  Nothing in This section does not shall relieve the
283	person who is served a receiving notice of claim under
284	subsection (1) from complying with all contractual provisions of
285	any liability insurance policy as a condition precedent to
286	coverage for any claim under this section. However,
287	notwithstanding the foregoing or any contractual provision, the
288	providing of a copy of such notice to the person's insurer, if
289	applicable, shall not constitute a claim for insurance purposes.
290	Nothing in this section shall be construed to impair technical
291	notice provisions or requirements of the liability policy or
292	alter, amend, or change existing Florida law relating to rights
293	between insureds and insurers except as otherwise specifically
294	provided herein.
295	(14)  To the extent that an arbitration clause in a
296	contract for the sale, design, construction, or remodeling of
297	real property conflicts with this section, this section shall
298	control.
299	(15)  Upon request, the claimant and any the person served
300	with receiving notice pursuant to subsection (1) shall have a
301	mutual duty to exchange, within 30 days after service of a
302	written request, which request must cite this subsection and
303	include an offer to pay the reasonable costs of reproduction,
304	any design plans, specifications, and as-built plans; any
305	documents detailing the design drawings or specifications;
306	photographs, videos, and expert reports that describe any defect
307	upon which the claim is made; subcontracts; and purchase orders
308	for the work that is claimed defective or any part of such
309	materials all available discoverable evidence relating to the
310	construction defects, including, but not limited to, expert
311	reports, photographs, information received pursuant to
312	subsection (4), and videotapes, if any. In the event of
313	subsequent litigation, any party who failed to provide the
314	requested materials such evidence shall be subject to such
315	sanctions as the court may impose for a discovery violation.
316	Expert reports exchanged between the parties may not be used in
317	any subsequent litigation for any purpose, unless the expert, or
318	a person affiliated with the expert, testifies as a witness or
319	the report is used or relied upon by an expert who testifies on
320	behalf of the party for whom the report was prepared.
321	Section 4.  Section 558.005, Florida Statutes, is amended
322	to read:
323	558.005  Contract provisions; application.--
324	(1)  Unless a claimant and a potential defendant have
325	agreed in writing to opt out of the requirements of this
326	section, Except as otherwise provided in subsections (3) and
327	(4), the provisions of this chapter shall apply to any claim for
328	legal relief for which the agreement to make the improvement was
329	made after October 1, 2009, and for which the basis of the claim
330	is a construction defect that has arisen after completion of a
331	building or improvement. every contract for the design,
332	construction, or remodeling of real property entered into:
333	(2)  For a claim of a construction defect pursuant to
334	contracts for improvement entered into as described in this
335	subsection, the following applicable notices are required:
336	(a)  Between July 1, 2004, and September 30, 2006, which
337	contract contains the notice as set forth in paragraph (3)(2)(a)
338	and is conspicuously set forth in capitalized letters.
339	(b)  Between On or after October 1, 2006, and September 30,
340	2009, which contract contains the notice set forth in paragraph
341	(3)(2)(b) and is conspicuously set forth in capitalized letters.
342	(3)(2)(a)  The notice required by paragraph (2)(1)(a) must
343	be in substantially the following form:
344
345	CHAPTER 558 NOTICE OF CLAIM
346
347	CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS
348	YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN
349	ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE YOU
350	BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO
351	THIS CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY
352	CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE
353	SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION
354	DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE
355	ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
356	ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND
357	PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED
358	TO PROTECT YOUR INTERESTS.
359	(b)  The notice required by paragraph (2)(1)(b) must
360	expressly cite this chapter and be in substantially the
361	following form:
362
363	CHAPTER 558 NOTICE OF CLAIM
364
365	CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS
366	YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN
367	ALLEGED CONSTRUCTION DEFECT. SIXTY DAYS BEFORE YOU BRING ANY
368	LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS
369	CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY
370	CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE
371	SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION
372	DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE
373	ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
374	ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND
375	PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED
376	TO PROTECT YOUR INTERESTS.
377	(4)(3)  At any time After receipt of the initial notice of
378	claim, a claimant and the person to whom notice is served or
379	otherwise must be served receiving notice under s. 558.004(1)
380	may agree in writing to pre-action mediation or otherwise, by
381	written mutual agreement, alter the procedure for the notice of
382	claim process described in this chapter.
383	(5)(4)  Notwithstanding the notice requirements of this
384	section for contracts entered into on or after October 1, 2006,
385	this chapter applies to all actions accruing before July 1,
386	2004, but not yet commenced as of July 1, 2004, and failure to
387	include such notice requirements in a contract entered into
388	before July 1, 2004, does not operate to bar the procedures of
389	this chapter from applying to all such actions. This chapter
390	applies to all actions accruing on or after July 1, 2004, and
391	all actions commenced on or after such date, regardless of the
392	date of sale, issuance of a certificate of occupancy or its
393	equivalent, or substantial completion of the construction.
394	Notwithstanding the notice requirements of this section for
395	contracts entered into between July 1, 2004, and September 30,
396	2006, this chapter applies to all actions accruing before July
397	1, 2004, but not yet commenced as of July 1, 2004, and failure
398	to include such notice requirements in a contract entered into
399	prior to July 1, 2004, does not operate to bar the procedures of
400	this chapter from applying to all such actions. Notwithstanding
401	the notice requirements of this section for contracts entered
402	into on or after October 1, 2006, this chapter applies to all
403	actions accruing before July 1, 2004, but not yet commenced as
404	of July 1, 2004, and failure to include such notice requirements
405	in a contract entered into before July 1, 2004, does not operate
406	to bar the procedures of this chapter from applying to all such
407	actions.
408	(6)  Notwithstanding s. 558.003, unless the parties agree
409	that this chapter does not apply, after October 1, 2009, any
410	written contract for improvement of real property entered into
411	between an owner and a contractor, or between an owner and a
412	design professional, must contain substantially the following
413	notice: "ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE
414	NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES."
415	The failure to include in the contract the notice provided in
416	this subsection does not subject the contracting owner,
417	contractor, or design professional to any penalty. The purpose
418	of the contractual notice is to promote awareness of the
419	procedure, not to be a penalty.
420	Section 5.  This act shall take effect October 1, 2009.

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