CLAIMS AGAINST CONTRACTORS
As many of you know, the 2003 Florida Legislature adopted a statute requiring that construction defect claims be resolved using a new 'alternative dispute resolution mechanism'. This law has been codified as Chapter 558, Florida Statutes.
At first glance, it might appear that this new law will only be of concern to those associations who want to sue the developer after transition of association control. NOT SO FAST MY FRIEND. This law is much broader than many people know and may become a trap when least expected.
The following is a short summary of this law, however, you are encouraged to obtain a complete copy of the statute and read it carefully.
A. BROAD SCOPE OF NEW LAW (IT SEEMS TO COVER EVERYTHING):
As a starting point, and to illustrate the scope of this law, this new law requires all contracts for the 'sale, design, construction, or remodeling of a dwelling' to be subject to the following language:
FLORIDA LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST A CONTRACTOR, SUBCONTRACTOR, SUPPLIER OR DESIGN PROFESSIONAL FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE CONTRACTOR, SUBCONTRACTOR, SUPPLIER OR DESIGN PROFESSIONAL A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND MAKE AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER FLORIDA LAW.
In order to fully understand the importance of this language, you must understand that the term 'dwelling' is defined as follows to include almost everything, even common elements and common property:
'Dwelling' means a single-family house, manufactured or modular home, duplex, or unit in a multifamily residential building designed for residential use and includes common areas and improvements that are owned or maintained by an association or by members of an association, and includes the systems, other components, and improvements that are part of the structure at the time of completion of construction.
B. WHO IS COVERED BY THIS LAW (YOU ARE):
The following parties are covered by this new law:
a) Individual Homeowners, including subsequent purchasers and tenants;
b) Chapter 718 Condominium Associations;
c) Chapter 719 Cooperative Associations;
d) Chapter 720 Homeowners’ Associations; and
e) Chapter 723 Mobile Home Park Associations.
C. WHAT ARE THE PROCEDURAL STEPS (STRANGE BUT TRUE):
The following is a brief summary of the procedural steps required by this new law:
1. Association’s Notice of Claim:
If an Association believes that a contractor (i.e. painting contractor) has not performed the job properly, it must first notify the contractor and identify the alleged deficiencies.
2. Contractor’s Response:
Upon receipt of the notice, the Contractor and all subcontractors, suppliers and design professionals must be given the opportunity to inspect the property. Then within 25 days from receipt of the Notice, the Contractor must deliver a written response to the Association concerning the claim. This response must be one of the following:
a) The Contractor may offer to repair the defect;
b) The Contractor may offer to pay money to the Claimant to repair the defect, which payment must be made within 30 days of the acceptance of the offer. As further addressed below, the Contractor must advise the Association that it must reject any such offer within 45 days or it will be deemed accepted;
c) The Contractor may dispute the claim; or
On the other hand, the Contractor may simply ignore the claim with no penalty. If this occurs, the Association can then immediately file suit without complying further with this new law.
3. Association’s Required Response (HERE IS THE TRAP):
If the Contractor offers to repair or pay for the repair, the Association must do one of the following things:
a) It must accept the offer to repair or pay; or
b) It must reject the offer to repair or pay, which rejection must be conveyed in a specific fashion.
c) HOWEVER, IF THE ASSOCIATION DOES NOT AFFIRMATIVELY REJECT THE OFFER WITHIN 45 DAYS OR, PRESUMABLY, IF IT FAILS TO REJECT THE OFFER IN THE SPECIFIC FASHION REQUIRED BY THE STATUTE, THE OFFER IS DEEMED ACCEPTED. THIS IS TRUE EVEN IF THE OFFER IS FOR ONLY $1.00 ON A LARGE CLAIM.
D. WHAT SHOULD YOU DO (CROSS YOUR FINGERS):
Please remember this summary is not intended to address all of the nuances or technical requirements of this law. It is intended to put you on notice of this extremely important new law. In order to protect yourselves, there is only one thing that you can do. Educate, educate, educate and then educate some more.
If anyone would like a copy of this law, please let us know and we will send you a copy. Simpler, however, may be to go to www.flsenate.gov/statutes and download a copy of Chapter 558.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, a partner of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2003 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.