Construction Defects – Time is of the Essence
Florida Statute imposes strict deadlines that cut off an Association’s ability to file a lawsuit pertaining to construction defects. Communities must be aware of certain deadlines or they risk extinguishment of their right to sue for shoddy construction. The following article describes the current law, proposed changes that will further harm associations, and what your community should do to best protect itself.
10-Year Statute of Repose
Known as the “Statute of Repose,” the law imposes a 10-year deadline on an Association’s ability to bring a claim related to the design, planning, or construction of an improvement to real property. Unlike the “Statute of Limitations,” which typically runs from the date an individual knew (or should have known) about a potential legal issue, the Statute of Repose begins to accrue from the moment the last of the following conditions occur, without regard to an owner’s knowledge of the condition:
- the date of actual possession by the owner,
- the date of the issuance of a certificate of occupancy,
- the date of abandonment of construction if not completed, or
- the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer. Fla. Stat. § 95.11(3)(c).
After the latest of these four events occurs, the 10-year countdown commences and thereafter serves as an absolute bar on the ability to file suit in response to a defect.
4-Year Statute of Limitations
In addition to the 10-year limitation, for “latent defects,” or those that are not discoverable through reasonable inspection and the owner is unaware of, a 4-year Statute of Limitations prohibits legal action from the date the latent defect is discovered. In other words, the 4-year Statute of Limitations is activated upon a defect’s discovery, while the 10-year Statute of Repose is an ultimate cap on litigation regardless of knowledge of a defect. As a result of these Statutes, community associations along with their owners must be proactive to ensure their rights are not extinguished.
Proposed Changes to Law
Unfortunately, proposed changes to Statute are even less friendly to community associations. House Bill 85 was introduced December 29, 2022. It seeks to clarify the four 10-year Statute of Repose triggering events detailed above. The proposed legislation would reduce the 10-year limit to file a lawsuit to just seven years, and would start at the earliest (rather than latest) of:
- The issuance of a temporary certificate of occupancy;
- The date of the issuance of a certificate of occupancy; or
- The date of issuance of a certificate of completion.
If none of the triggering events occur, the 7-year period begins after the construction project is abandoned or termination of the contract. The proposed changes are significantly less friendly to community associations.
How to Protect Your Community
To best protect your community association, in addition to the Board of Directors’ knowledge of these strict deadlines, owners should also be encouraged to report defects. If a construction defect is suspected, time is of the essence. Examples of common defects include cracks (especially to stucco), leaks, and crumbling materials. Hidden defects may require invasive testing and specialized inspections.
The association should not hesitate to engage in routine inspection of the common elements and units. Informal inspections can be done on a regular basis with members of the community, and annually or bi-annual with engineers or other suitable experts. At the very least, communities less than 10 years old and those that have undergone an extensive construction should plan to have an expert inspect the common elements at least once well before the 10-year expiration to ensure sufficient time is available if a lawsuit is necessary.
If an issue is discovered in your community, work with your association’s counsel to formulate a legal strategy. Tankel Law Group works closely with law firms that specialize in construction defect litigation. If your community suspects the existence of a construction defect, do not hesitate to reach out to our office to ensure your rights are preserved.
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