Attorney
What is a Construction Defect?
Florida Law defines a construction defect as “a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property” which results from certain causes such as a failure to abide by the Florida Building Code.
For example, let’s say you buy a newly built home, and roughly a week after moving in it becomes apparent that your house will not stay cool. So, you hire an A/C repairman who informs you that it is in fact not your A/C that is malfunctioning, and instead it is the improper installation of your windows leading to a cooling inefficiency in your home.
The improper installation of the windows amounts to a construction defect, as damage to the home amounted from the defects in the installation of the windows. In most instances, civil action can be pursued against the builder of the home (and/or whichever subcontractor installed the windows).
Pursuing Construction Defect Claims
When an owner is faced with a construction defect, he/she should be aware that Chapter 558, Florida Statutes, requires the owner to undertake certain steps in notifying a contractor of said defect.
In our example above, if it is found that the windows were improperly installed, then the builder would be responsible for the cost to replace or repair the windows so that they function properly.
Additionally, the builder may be liable for any damages that arose from the improper installation such as increased cooling costs, water leaks (if applicable), etc.
Notice Requirements under Chapter 558
Chapter 558 of the Florida Statutes outlines the steps an owner must take prior to filing a lawsuit against a contractor.
Most importantly, an owner must give the contractor or builder notice and an opportunity to repair the alleged defect. This process allows the parties to attempt to settle the issue outside of court before filing a lawsuit (under a process called alternative dispute resolution).
After the initial notice of the claim is served, the contractor must provide a written response within 45 days which must provide:
(a) A written offer to remedy the defect via repairs at no cost to the owner and a timetable for the completion of the same;
(b) A written offer to settle the claim via a monetary payment and timetable for said payment;
(c) A written offer to settle the claim by a combination of repairs and monetary payment and a timetable for the completion of such repairs and making payment;
(d) A written statement that the contractor disputes the claim and will not remedy the defect or settle the claim; or
(e) A written statement that a monetary payment, including insurance proceeds, if any, will be determined by the person’s insurer after notification is sent to the insurer.
After receipt of a response to the notice of defect, an owner should consider any offers to settle or otherwise compromise the claim. After the contractor provides its response, an owner may proceed with filing a suit without further notice to the contractor under the following circumstances:
(1) First, if the parties agree to partially settle or compromise the claim, then the owner may proceed with legal action as it relates to the rest of the claim.
(2) Second, if the contractor disputes the claim and refuses to fix the defect, compromise, or settle, then the owner may proceed with action.
(3) Lastly, if the owner does not receive a response in a timely manner (i.e. within 45 days), then he/she may proceed with filing the action.
An owner has several other rights specifically enumerated under Chapter 558 including rights to demand specific information from the contractor. Overall, it is extremely important to consult with an experienced construction attorney when you are faced with a construction defect.
Boatman Ricci regularly represents both homeowners and contractors in construction disputes and assists them in navigating the dispute process from initiating a claim through trial, if necessary. If you need assistance, please contact Boatman Ricci at (239) 330-1494.
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