Changes to Construction Defect Claims Process Being Considered by Florida Legislature Create Concerns for Associations, Property Owners

Developed with the assistance of the South Florida Chapter of the Associated General Contractors of America, House of Representatives Bill 87 seeks to amend Chapter 558, Florida Statutes, in an effort to help contractors and design professionals avoid construction defect litigation. For community associations and property owners, there are a number of concerns about the proposed changes under this new legislation as it currently stands before the House’s Civil Justice Subcommittee. The changes under HB 87 would require community associations or other property owners that wish to pursue a construction claim to meet additional procedural requirements which could require substantial expenditures on engineering fees before being able to file suit. The bill would also require property owners to produce potentially large amounts of documents to the contractor or design professional before being permitted to file suit without imposing a similarly broad requirement on the contractor or design professional, and it would impose monetary sanctions against property owners who file suit for construction defects in several circumstances, while not providing for any sanctions against contractors or design professionals in similar situations.

The changes under HB 87 include:

  • Revising the legislative intent to address the involvement of insurers.
  • Revising the legislative intent to indicate that Chapter 558 is intended to provide an opportunity to resolve construction defect claims through confidential settlement negotiations.
  • Revising the definition of the term “Completion of a building or improvement” to include issuance of a temporary certificate of occupancy, which could potentially shorten the statute of limitations for a property owner to file suit for construction defects.
  • Providing additional requirements for a notice of claim, including the identification of specific location(s) of each alleged construction defect, as well as the specific provisions of the building code, project plans, project drawings, project specifications, or other documentation, information, or authority that serve as the basis of the claim for each alleged construction defect.
  • Revising the requirements for a response to a notice of claim to address monetary settlement offers.
  • Providing that, if a claimant proceeds with an action that includes any claim previously resolved in accordance with Chapter 558, the associated portion of that action shall be deemed frivolous. The term “previously resolved” is not defined.
  • Providing for sanctions for such frivolous claims, including attorneys’ fees.
  • Revising the provisions relating to production of records requested under Chapter 558, to include a claimant’s maintenance records and other documents related to the discovery, investigation, causation, and extent of the alleged defects identified in the notice of claim and any resulting damages.
  • Providing for sanctions for construction defect claims that were solely the fault of a claimant or its agents, including costs of investigation, testing, and attorneys’ fees. (No sanctions are provided against a defendant if the defect is deemed to be solely the defendant’s fault.)

HB 87 defines “completion of a building” to mean issuance of a temporary certificate of occupancy (TCO) instead of the final certificate of occupancy (CO), which may shorten the statute of limitations for construction defects in some cases. Currently, the statute of limitations for construction defects commences with the final certificate of occupancy, but if the bill is ratified defendants will use it to argue that the period for the statute of limitations begins with the issuance of the TCO rather than the final CO.

Florida legislature2.jpgThe proposed bill would require associations and property owners to identify in the initial notice of claim every single location of each defect rather than to provide a representative sample. If the type of defect involved is concealed, this would necessitate destructive investigations, and would require associations and property owners to demolish building elements in search of each instance of the defects in order to include all of them in the notice.

In addition, the bill also requires that the initial notice includes all of the specific provisions of the building code, project plans, project drawings, project specifications and other documentation, information or authority that serve as the basis for the defect claim. The failure to include each of these would serve to invalidate the notice of claim as deficient. This would create a significant obstacle to bringing a claim for construction defects, as the associations and property owners often do not have all the project drawings, specifications, etc., at the outset. Before initiating a claim, associations and property owners have often not yet had the opportunity to obtain project records or depose the defendants, which frequently allows the issues causing the defect(s) to be expanded during the course of litigation. Under this bill, if the claim is expanded based on information learned in discovery, the defendant can argue that the initial notice of claim was deficient.

The bill would require more detailed settlement proposals from contractors that wish to extend a settlement offer, but it provides no penalties for defendants that fail to comply with this requirement. However, the associations and property owners that file claims are subjected to several potential penalties if they do not comply with the requirements under the proposed modifications to Chapter 558.

The bill provides for sanctions if a claimant sues for any claim that had been “previously resolved” in accordance with Chapter 558, but it fails to define “previously resolved.” If a construction defect is settled by repairs offered by the contractor during the Chapter 558 claims process but the repairs fail to fully correct the defects and the owner or association then files suit because the issue was not resolved, the defendant may claim that the issue was “previously resolved” and the owner may face penalties. However, the bill provides no similar penalty for contractors that agree to provide repairs and then breach that agreement.

The proposed law would also require owners/associations to produce all of their maintenance records and other documents related to discovery, investigation, causation and the extent of the alleged defect(s) identified in the notice of claim as well as the damages resulting from the defects. This will typically require an extensive, time consuming, invasive and expensive process of document inspection, review and production on the part of the claimant before a lawsuit is ever filed, creating another significant roadblock to filing a suit for construction defects. From the owner/association’s perspective, this defeats part of the benefit to settling before litigation starts, as they must incur significant discovery expenses and attorney’s fees just to go through the claims process prior to the filing of a lawsuit. In addition, the provision is one sided in that it does not require the contractors or design professionals to produce to the claimant a similarly broad amount of discovery during the process.

HB 87 would also provide for sanctions against an owner or association that brings suit for an item that is ultimately deemed by the court to be solely the fault of the claimant or its agents. Florida Statutes Section 57.105 already provides for fees against a party that prosecutes a frivolous claim or a frivolous defense. The bill does not reference the standard in Section 57.105, so essentially it creates a possibly different standard. HB 87’s possible sanctions against associations/owners include not only attorney’s fees but also costs of inspection, investigation and testing. However, if a contractor or other respondent is ultimately found to be responsible for a defect, and its defense was not supported by the facts or the law, no sanctions are provided against the contractor or its attorney under the bill.

As it now stands, HB 87 would cause significant obstacles and undue burdens on property owners and community associations that wish to pursue construction defect claims. Our firm’s other community association attorneys and I encourage Florida associations and property owners to become informed about this bill and its progress in Tallahassee. The bill has been assigned to the Civil Justice Subcommittee, the Business & Professions Subcommittee and the Judiciary Committee, and it must pass those committees before coming before the full Florida House of Representatives in the 60-day legislative session that begins March 3, 2015. If passed, the new law would take effect October 1, 2015.