Florida’s construction defect law, which started in 2003, changed how construction defect claims are handled. Now, homeowners have to tell contractors about any problems before they can sue. This is new and has caused confusion for lawyers and others involved in construction cases. The statute about construction defects has caused problems for both contractors and people making claims. The original timelines were too short and unrealistic, especially for big construction projects. The law was changed in 2004 to fix some of the issues, but there are still new rules that might cause more problems. These new rules include exchanging expert reports and allowing destructive testing on the affected unit. If someone doesn’t follow these new rules, they might not get as much money in court. The time limits for filing a lawsuit and doing inspections have also been extended. This article will focus on how these changes affect community associations with more than 20 residential parcel owners. The new procedure for construction defect claims requires the claimant to give the contractor and other responsible parties 120 days’ written notice of the defects. The contractor then has 50 days to inspect the dwelling and 30 days to respond to the claim with an offer to repair, a monetary offer, or a dispute. The claimant has 45 days to accept or reject the offer. If they don’t follow these steps, they can’t take the claim to court. The new law requires both the claimant and the contractor to share all their evidence with each other before any lawsuit or arbitration. This means they have to give each other things like expert reports, contracts, and other documents related to the construction project. If they don’t share these things, they could get in trouble with the court. This gives both sides a chance to see what the other has before going to trial or arbitration, which can be helpful for figuring out problems and finding evidence. The rule that requires contractors to provide information before a lawsuit can be a problem because it means they have to give a lot of documents to the other party. The new law doesn’t say when they have to give the documents or who pays for copying them. Also, there’s no way to enforce this rule if there’s a disagreement. The law also says contractors have to work with the person making the claim to make it easier to inspect the work. But this could be hard for a community with lots of homes. The law also says that if the homes aren’t available for inspection, the claim may not be valid, so it’s important for the home owners to let the inspector in. It might also be a good idea for the person making the claim to take pictures or videos of the problems just in case they can’t get into a home to inspect it. Destructive testing can only be done if both parties agree, and the person doing the testing must offer to pay for any damage they cause. The person doing the testing also has to be approved in advance, and the testing has to be done at a convenient time for both parties. However, there’s no guarantee that the testing will be done properly, and the law doesn’t offer much help if the claimant is damaged by the testing. It’s important for the claimant to ask for the tested areas to be restored, and to make sure their property is protected if the testing party isn’t paid. Overall, the law doesn’t do much to protect the claimant from damage caused by destructive testing. If someone requests destructive testing on a construction project and it’s denied, they may not be able to claim as much money for damages later on if the problem gets worse. It’s important for the person making the claim to consider whether destructive testing is necessary and to document their reasons for refusing it. Contractors will probably ask to do destructive testing in most cases so they can protect themselves in case of a lawsuit. The rules about construction defects don’t apply to every case. If the contract was made after July 1, 2004, the rules only apply if the contract has specific language in capital letters. But if the contract was made before that date, the rules apply to any lawsuit filed after July 1, 2004, even if the contract doesn’t have the special language. Both parties can agree to ignore the rules after the first written notice of a defect. If the rules do apply and the person suing didn’t follow them, the court will have to pause the lawsuit until they do. So it’s important to follow the rules or the lawsuit will take longer and cost more. There are still some problems with the new law about dealing with contractors who don’t honor their agreements. For example, there are no consequences for a contractor who doesn’t follow through with their promise, and there’s no time limit for them to finish the repairs they agreed to. The law also doesn’t require the money offered for repairs to be fair, and there’s no guarantee that the repairs will actually fix the problem. A recent update to Florida’s construction defect law is causing a lot of controversy and confusion. The amendments were meant to fix issues with the original law, but they have created new problems. The changes may raise constitutional issues, such as giving too much power to trial courts and infringing on the Florida Supreme Court’s authority. It’s likely that these issues will end up in the Florida appellate courts. Overall, the amendments have made things more complicated for everyone involved, and there’s already talk of proposing another bill to fix the problems next year. If you have a problem with your house or a small building, you have to tell the builder about it 60 days before you sue them. They have 30 days to check it out, and then 10 days to tell anyone else who might be responsible. Those other people have 15 days to respond. Then the builder has 45 days to try to settle the problem. This is different for bigger buildings or communities with more than 20 units. And it’s still not clear what “reasonable detail” means when describing the problem. The law in Florida allows a person with a construction defect claim to try and settle the issue before going to court. If the claimant gets a settlement offer, they have 45 days to accept or reject it. If they accept it, they can still go to court for other issues. Also, a claimant can have trouble investigating the defects without access to certain construction documents. This can make it hard to prove their case. The American Arbitration Association has rules that limit discovery in construction disputes. Florida statute §558.004 outlines the requirements for a party to give notice of a construction defect before filing a lawsuit. If a party wants to do destructive testing, they may need to provide financial security and assurances. Before you sue someone for a problem with your house, you have to follow certain rules in Florida. You have to give the other person written notice of the problem and give them a chance to fix it or offer to pay for it. There are strict deadlines and procedures you have to follow to protect your rights. This applies even if you don’t have a written contract with the person you’re suing. If the person doesn’t fix the problem, you can sue them, but it can be complicated and you might not be able to get your legal fees paid for. A court case in Florida dealt with a statute that suggested ignoring the usual rules for obtaining evidence in a lawsuit. The usual procedures for objecting to requests for evidence and keeping a log of withheld documents were not followed. The article’s author is a lawyer who specializes in construction law and is part of a group that works on legal issues related to property and trusts. The article was written on behalf of a section of the Florida Bar that focuses on property, trusts, and probate law.
Source: https://www.floridabar.org/the-florida-bar-journal/the-2004-amendments-to-floridas-construction-defect-statute-some-solutions-and-more-confusion/
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