Florida House Bill 85 would decrease the time in which an action could be brought by a homeowner for construction defects. Proponents of the bill say that reducing potential liability for insurance companies, builders and other construction professionals will ultimately drive down costs and provide more affordable housing options in the state. Opponents argue that if passed into law this legislation would significantly undercut homeowners rights and impair their ability to seek a remedy for latent defects that only appear years after building is complete. Similar bills proposed during the 2022 legislative session inspired much debate, but did not pass.
The Florida Building Code
The Florida Building Codes Act is enumerated in part IV of ch.553, F.S. It provides a set of rules and standards that must be applied by all contractors and other building professionals throughout the State of Florida. Its stated primary purpose is to "regulate new construction and existing structure modifications to achieve the highest safety level and the fewest construction defects. To accomplish this, the Building Code sets "minimum standards for the design, construction, erection, alteration, modification, repair and demolition of structures in the state."
A construction defect is defined by the Florida Statute as, "A deficiency in, or arising out of, the design, specifications, surveying, planning, supervision, or observation of construction, or the construction repair, alteration, or remodeling of real property." Persons claiming construction defect may recover for breach of contract or warranty, negligence and other causes of action provided under s.553.84, F.S., for Building Code violations.
Currently, the law allows a construction defect claim to be filed within the following time frames. For a patent, or an obvious/known defect the lawsuit must be filed within four years from the date of the later of the:
- Owner's actual possession
- Issuance of a certificate of occupancy
- Abandonment of the construction- if not completed, or
- Completion or termination of the engineer, architect, or contractor's contract with the employer.
The timeframe differs for latent defects, or those issues that are not easily discoverable or may take a longer period of time to surface. The current four year statute of limitations begins to run for these types of defects on the date the problem was discovered or should have been discovered with due diligence. Currently the statute of repose requires that a construction defect claim be filed no later than 10 years after the later of any of the above triggering events.
HB 85 Proposed Changes to Current Law
Under HB 85, the timeframe to present a cause of action for construction defect would change. Any suit for patent defects must be brought by the earliest of any of the following:
- Issuance of a temporary certificate of occupancy
- Issuance of a certificate of occupancy
- Issuance of a certificate of completion
- Abandonment of construction, or
- Completion or termination of the specified professional's employment contract.
In effect, this decreases the statute of repose from ten years to seven and sets the triggering point as the earlier of the triggering events rather than latest as is currently required by law. If passed HB 85 requires that the 7 year repose period begin to run from earliest of the issuance of a temporary certificate of occupancy, issuance of a certificate of occupancy, or issuance of a certificate of completion.
However, if none of these certificates are issued, the statute of repose runs from the date of the earlier of:
- The construction's abandonment, in not completed, or completion or termination of the engineer's, architect's, or
- Contractor's contract terminates with his or her employer.
This new bill also provides that units in a multi-dwelling building are considered as individual properties and the time frame of the statute of limitations is determined by each individual unit's certificate of occupancy.
Building Code Violations
The new legislation also limits the statutory Building Code violation to causes of action for material violations. A material violation is defined by the Building Code as "that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems." This limitation would apply even where the person responsible for a non-material Building Code violation knew or should have known that the violation existed and failed to repair it.
Status of the Bill
The House Civil Justice Subcommittee voted 15-3 to approve the proposal, which is filed for the legislative session that begins on March 7th of this year. If passed and signed into law by the Governor, this bill becomes effective immediately.
The attorneys at Wood, Smith, Henning & Berman are carefully monitoring the progression of this bill and will keep all interested parties updated as to new developments. Should you have any questions or concerns please do not hesitate to reach out to a member of our team.