Required Procedures In Florida For Dealing With Design And Construction Defects
By William Henry, PhD
The Florida Legislature has created a mandatory method to resolve construction disputes with idea that it would reduce the need for litigation as well as protect the rights of property owners. It requires that a property owner file a notice of claim with the contractor, subcontractor, supplier, or design professional that he or she asserts is responsible for design or construction defects. It provides the contractor, subcontractor, supplier, or design professional, and their insurers an opportunity to resolve the claim through confidential settlement negotiations without resort to further legal process. Only time will tell how well the procedure works. I offer a summary of the law in this article.
A property owner may not file a law suit pertaining to design or construction defects without complying with the statute. If such a suit is filed without first complying with the requirements of this chapter, the court is required, asked, to stay the action, without prejudice, and the action may not proceed until the property owner has complied with the requirements.
• A property owner alleging a construction defect must provide the contractor (including subcontractors, suppliers, design professionals, and others) with written notification describing that defect(s) in “reasonable detail at least 60 days before filing a lawsuit (120 days before filing an action involving an association representing more than 20 parcels).
• The contractor has the right to inspect the structure or improvement in question within five business days after service of the no-tice of claim.
• The inspection may include “destructive testing” by mutual agreement.
• Within 10 days of receiving notice of the claim, the contractor must forward a copy of it to any other person (i.e., subcontractor, sup-plier, or design professional) the contractor believes is responsible for the defect.
• Those secondary recipients may also inspect the structure or improvement in the same manner within five business days after receipt of the notice and issue a written response to the contractor to either repair the defect or dispute the claim.
• Within 25 days of receiving the notice, the contractor must serve a written response to the property owner.
• That response must either
Include a written offer to repair the alleged defect at no cost to the property owner;
Include a written offer to compromise the claim by monetary payment within 30 days; or the contractor offers to repair or compromise the claim by monetary payment, the property owner has 15 days (or, in the case of a condominium or homeowner association, 45 days) to accept or reject the offer.
• If the property owner accepts the offer and repair or payment is made, the property owner is thereafter barred from pursuing relief through litigation.
• If the property owner rejects the offer, it must be done by written notice containing the text of the offer with the word “rejected” printed on it.
• The property owner’s failure to reject an offer in strict accordance with this procedure constitutes an acceptance of the offer, whereas no such penalties exist for a contractor’s failure to comply with any of the procedures.
• The statute requires that upon entering into a contract for the “sale, design, construction or remodeling of a dwelling” the con-tractor must provide the owner of a dwelling with notice of the dispute resolution procedure, using the form set out in the statute.
• The statute does not create new rights, causes of action, or theories upon which liability may be based.
The scope of this article does not allow a more detailed description of the requirements. For that reason anyone who falls subject to the requirements is advised to seek legal counsel.
[1]William Henry PhD is the Principal in Charge of RGA-Design, LLC a full service architectural and interior design firm that has served as the architect of record for over 1,000 projects across the State of Florida (Registration number AA0003523, AR007521). He has lectured and written widely on the above topic. His most recent publication is ‘Return of the Master Builder’ available on Amazon Kindle e Books. Henry’s contact information is whenry@rga-design.com [2]; (813-226-2220 Ext 204) or visit the company web site at www.rga-design .com [3] or www.buildingdoctorfl.com [4].
Copyright © 2016 REAL Exclusive Magazine www.getrealexclusive.com [5]
Links to this article are encouraged
[6]