Senate Bill 948 (2020) — Construction defects
SB 948
Florida Bills
Florida Senate - 2020 SB 948 By Senator Baxley 12-01011-20 2020948__ Page 1 of 6 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to construction defects; amending s. 2 553.84, F.S.; defining the term “material violation”; 3 revising when a person has a cause of action for a 4 violation relating to the Florida Building Code; 5 providing requirements for such cause of action; 6 amending s. 558.004, F.S.; revising requirements 7 relating to notices of claim; requiring a claimant to 8 allow persons served with a notice of claim to inspect 9 certain records; providing that the claimant, under 10 certain circumstances, does not have a claim for 11 damages that could have been avoided or mitigated; 12 reenacting s. 558.002(5), F.S., relating to 13
definitions for ch. 558, F.S.; providing an effective 14 date. 15 16 Be It Enacted by the Legislature of the State of Florida: 17 18
Section
Section 553.84, Florida Statutes, is amended to 19 read: 20 553.84 Statutory civil action.— 21
(1) For purposes of this section, the term “material 22 violation” means a violation that exists within a completed 23 building, structure, or facility which may reasonably result, or 24 has resulted, in physical harm to a person or significant damage 25 to the performance of a building or its systems. 26
(2) Notwithstanding any other remedies available, any 27 person or party, in an individual capacity or on behalf of a 28 class of persons or parties, damaged as a result of a material 29
Florida Senate - 2020 SB 948 12-01011-20 2020948__ Page 2 of 6 CODING: Words stricken are deletions; words underlined are additions. violation of this part or the Florida Building Code, has a cause 30 of action in any court of competent jurisdiction against the 31 person or party who committed the violation; however, if the 32 person or party obtains the required building permits and any 33 local government or public agency with authority to enforce the 34 Florida Building Code approves the plans, and if the 35 construction project passes all required inspections under the 36 Florida Building Code, and if there is no personal injury or 37 damage to property other than the property that is the subject 38 of the permits, plans, and inspections, this
section does not 39 apply. 40
(3) A cause of action pled under this
section must cite to 41 the specific provisions of this part or the Florida Building 42 Code allegedly violated, must explain how each provision was 43 allegedly violated, and is subject to dismissal for failing to 44 do so unless the person or party knew or should have known that 45 the violation existed. 46
Section 2. Paragraph (
b) of subsection (1) and subsections 47 (2) and (7) of
section 558.004, Florida Statutes, are amended to 48 read: 49 558.004 Notice and opportunity to repair.— 50 (1) 51 (
b) The notice of claim must be made under oath by the 52 claimant and must describe in specific reasonable detail the 53 nature of each alleged construction defect, the name and contact 54 information of any consultants retained by the claimant or on 55 the claimant’s behalf to inspect the defect, and, if known, the 56 damage or loss resulting from the defect, including the alleged 57 cost of repairing the defect and any other damages alleged to 58
Florida Senate - 2020 SB 948 12-01011-20 2020948__ Page 3 of 6 CODING: Words stricken are deletions; words underlined are additions. have been suffered as a result of the defect. The notice of 59 claim must specifically identify, as applicable, the allegedly 60 defective materials, products, or components and the applicable 61 code provisions, professional standards of care for design, or 62 accepted trade standards for the construction or remodeling 63 allegedly violated and must explain how each cited code 64 provision or standard was violated.
Based upon at least a visual 65 inspection by the claimant or its agents, the notice of claim 66 must identify the specific location of each alleged construction 67 defect sufficiently to enable the responding parties to locate 68 the alleged defect without undue burden. If requested, the 69 claimant must allow the person served with the notice of claim 70 under this subsection the opportunity to inspect all maintenance 71 records for the subject property. The claimant has no obligation 72 to perform destructive or other testing for purposes of this 73 notice. 74
(2) Within 30 days after service of the notice of claim, or 75 within 50 days after service of the notice of claim involving an 76 association representing more than 20 parcels, the person served 77 with the notice of claim under subsection (1) is entitled to 78 perform a reasonable inspection of the property or of each unit 79 subject to the claim to assess each alleged construction defect. 80 An association’s right to access property for either maintenance 81 or repair includes the authority to grant access for the 82 inspection.
The claimant shall provide the person served with 83 notice under subsection (1) and such person’s contractors or 84 agents reasonable access to the property during normal working 85 hours to inspect the property to determine the nature and cause 86 of each alleged construction defect and the nature and extent of 87
Florida Senate - 2020 SB 948 12-01011-20 2020948__ Page 4 of 6 CODING: Words stricken are deletions; words underlined are additions. any repairs or replacements necessary to remedy each defect. The 88 person served with notice under subsection (1) shall reasonably 89 coordinate the timing and manner of any and all inspections with 90 the claimant to minimize the number of inspections.
If the 91 claimant fails to grant the person served with the notice under 92 subsection (1) the opportunity to conduct a reasonable 93 inspection of the property with the alleged defect during the 94 timeframe established in this section, the claimant does not 95 have a claim for damages that could have been avoided or 96 mitigated had an inspection taken place. The inspection may 97 include destructive testing by mutual agreement under the 98 following reasonable terms and conditions: 99 (
a) If the person served with notice under subsection (1) 100 determines that destructive testing is necessary to determine 101 the nature and cause of the alleged defects, such person shall 102 notify the claimant in writing. 103 (
b) The notice shall describe the destructive testing to be 104 performed, the person selected to do the testing, the estimated 105 anticipated damage and repairs to or restoration of the property 106 resulting from the testing, the estimated amount of time 107 necessary for the testing and to complete the repairs or 108 restoration, and the financial responsibility offered for 109 covering the costs of repairs or restoration. 110 (
c) If the claimant promptly objects to the person selected 111 to perform the destructive testing, the person served with 112 notice under subsection (1) shall provide the claimant with a 113 list of three qualified persons from which the claimant may 114 select one such person to perform the testing. The person 115 selected to perform the testing shall operate as an agent or 116
Florida Senate - 2020 SB 948 12-01011-20 2020948__ Page 5 of 6 CODING: Words stricken are deletions; words underlined are additions. subcontractor of the person served with notice under subsection 117 (1) and shall communicate with, submit any reports to, and be 118 solely responsible to the person served with notice. 119 (
d) The testing shall be done at a mutually agreeable time. 120 (
e) The claimant or a representative of the claimant may be 121 present to observe the destructive testing. 122 (
f) The destructive testing shall not render the property 123 uninhabitable. 124 (
g) There shall be no construction lien rights under
part I 125 of
chapter 713 for the destructive testing caused by a person 126 served with notice under subsection (1) or for restoring the 127 area destructively tested to the condition existing prior to 128 testing, except to the extent the owner contracts for the 129 destructive testing or restoration. 130 131 If the claimant refuses to agree and thereafter permit 132 reasonable destructive testing, the claimant shall have no claim 133 for damages which could have been avoided or mitigated had 134 destructive testing been allowed when requested and had a 135 feasible remedy been promptly implemented. 136
(7) A claimant who receives a timely settlement offer must 137 accept or reject the offer by serving written notice of such 138 acceptance or rejection, signed by the claimant, on the person 139 making the offer within 45 days after receiving the settlement 140 offer. If a claimant initiates an action without first accepting 141 or rejecting the offer, the court shall stay the action upon 142 timely motion until the claimant complies with this subsection. 143
Section 3. For the purpose of incorporating the amendment 144 made by this act to
section 553.84, Florida Statutes, in a 145
Florida Senate - 2020 SB 948 12-01011-20 2020948__ Page 6 of 6 CODING: Words stricken are deletions; words underlined are additions. reference thereto, subsection (5) of
section 558.002, Florida 146 Statutes, is reenacted to read: 147 558.002
Definitions.—As used in this chapter, the term: 148 (5) “Construction defect” means a deficiency in, or a 149 deficiency arising out of, the design, specifications, 150 surveying, planning, supervision, observation of construction, 151 or construction, repair, alteration, or remodeling of real 152 property resulting from: 153 (
a) Defective material, products, or components used in the 154 construction or remodeling; 155 (
b) A violation of the applicable codes in effect at the 156 time of construction or remodeling which gives rise to a cause 157 of action pursuant to s. 553.84; 158 (
c) A failure of the design of real property to meet the 159 applicable professional standards of care at the time of 160 governmental approval; or 161 (
d) A failure to construct or remodel real property in 162 accordance with accepted trade standards for good and 163 workmanlike construction at the time of construction. 164