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.