Florida Construction Defect Claims from a Homeowner’s Perspective / Responses to Frequently Asked Questions

How do I know if my home has a construction defect?

In some instances, you will observe evidence or manifestation of damage, like water intrusion, mold, staining, efflorescence, wood rot, cracking, or movement of a structural element.  In other instances, it takes an experienced professional to identify a defect.  If you live in a neighborhood built by a single contractor and a neighbor has a problem, it is usually a good idea to have someone check your home for similar issues.  Also, if you see significant repairs being performed to a home in your neighborhood, you may want to determine the reason for the repairs and whether your home could be similarly affected.  Once you suspect there may be a defect, you should have an experienced construction professional determine whether a defect exists.  Once the defect or associated damage is observable, the time you have to assert a claim may start to run.  You must timely assert a claim to be able to recover damages.  Thus, if you are in doubt about whether or not a defect exists, you should be proactive and have an experienced professional evaluate the condition and preferably provide an opinion or report in writing.

 

What is a patent construction defect?

A patent defect is one that is reasonably observable or discoverable by a normally observant person.  “Observable” or “discoverable” does not mean you can definitively determine the cause of the defect or the extent of the damage.  Many times a defect is patent if you can observe symptoms of the potential defect.  For example, if you see water intrusion around a window or water stains on an interior ceiling, you can reasonably suspect that there is some design, manufacturing, installation, or other construction defect.  Therefore, the time within which you must assert a claim may begin to run.

 

What is a latent construction defect?

A latent defect is one that is not reasonably observable or discoverable by a normally observant person.  You generally get additional time to assert a claim for a latent defect because of the delay in being able to discover it.  Usually, once the latent defect becomes known or patent, the time within which you need to assert a claim begins to run.  However, after a certain number of years, Florida Statute 95.11(3)(c) may cut off the right to recover damages for a construction defect claim.  This is known as Florida’s Statute of Repose.  Even if you never knew about the defect or observed any resulting damage, after a number of years, the Statute of Repose can preclude certain claims.

 

Doesn’t the Building Department check for construction defects?

Yes, the Building Department inspects certain aspects of a home’s construction.  If the inspector identifies a deviation from the permitted plans or a Building Code violation, the contractor will not pass the inspection.  Generally, the contractor corrects the issue and the inspector re-inspects the work.  But, inspectors only observe the construction at certain milestones and at intermittent times.  Therefore, you can’t rely on inspectors to catch every potential construction defect.  Additionally, it takes time for certain defects to manifest themselves, even to an experienced inspector.

 

What needs to be done to evaluate a potential defect?

Some defects like water intrusion or cracking of structural elements are relatively obvious.  Others like stucco efflorescence, may not be obvious.  Once you suspect that a defect exists, you should attempt to have your contractor, a reputable remediation contractor, or a licensed architect or engineer inspect the condition.  Sometimes, it is necessary to perform destructive testing to uncover the cause or the extent of the damage.

 

What is a Chapter 558 Construction Defect Notice?

Chapter 558, Florida Statutes, is a Florida statutory framework that is intended to reduce the number of construction defect lawsuits.  Before filing a construction defect lawsuit, a property owner or “claimant” typically must provide a contractor with notice of the defect.  The contractor then has a specified amount of time to inspect the defect and to respond to the notice.  The contractor also has the option of notifying its subcontractors of the alleged defect and giving them the opportunity to conduct an inspection.

You should consult an experienced construction attorney to prepare a Chapter 558 Construction Defect Notice and to handle the discussions with your contractor or any other responsible parties about potential resolutions.

 

Will I need to file a lawsuit against my contractor?

If the contractor does not fairly and appropriately respond to the Chapter 558 notice, you need to evaluate whether to file a lawsuit.  In some cases, the litigation costs would far exceed the remediation costs.  If so, it may not be prudent to file a lawsuit.

 

What if I am not the original owner of the home?

There are a number of claims that subsequent purchasers and owners may be able to assert against a contractor, including claims for violating the Building Code and negligence.

 

How long do I have to sue my contractor for a construction defect?

Pursuant to Florida Statute 95.11(3)(c), construction defect claims typically have to be filed within 4 years from when you first know about the defect or the associated damages.  Florida’s Statute of Repose bars certain claims after 10 years from 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, whichever date is latest.  This is a very technical area of law.  Therefore, when you first suspect you may have a construction defect, it is important to consult with a licensed attorney and determine, if you want to assert a claim, how much time you have to do so.  If you miss the deadline to file a claim, you may not be able to recover any damages.

 

How long will a lawsuit take?

Florida’s Supreme Court has time standards for how long it should take to resolve a lawsuit.  But, in actual practice, the length of time it takes to resolve a lawsuit is highly dependent on how complex the defects and damages are.  Relatively straightforward defect lawsuits can be resolved in a year or so, while complex defect lawsuits can last many years.  Each party to a construction defect lawsuit has the opportunity to conduct discovery regarding the claim and potential defenses.  This discovery can be in writing, like Requests for Admission, Requests for Production of Documents, or Interrogatories, or in person, like inspections and depositions.  A single defect claim can implicate numerous parties including the design professional, contractor, multiple subcontractors, product manufacturers, inspectors, and others.

 

Will I have to testify at trial?

The vast majority of construction defect cases are resolved before trial.  If your matter actually goes to trial, it is best to have a property owner testify.  Many times, the owner is the first person to observe the defect, so when you need to describe the background and basis for the claim, it makes sense for the owner to testify.  This is a strategy decision that can be discussed while preparing for trial.

 

Do I have to repair the damage before filing a lawsuit?

Not necessarily.  You typically want to mitigate your damages if it is reasonably practical to do so.  For example, if you have a roof leak, you may want to install a temporary cover or tarp over the suspected source of the leak to prevent additional damage.  The law does not require you to mitigate damage if the cost to do so is excessive or beyond your financial ability.  You must only act reasonably in the circumstances.  For significant defects, it may not be possible for a homeowner to mitigate damages.

 

Can I get reimbursed for my attorneys’ fees?

In certain circumstances.  Generally, there must be a contract, statute, or other basis to allow you to recover your own attorneys’ fees from another party.  If not, there are ways to “create” a basis for attorney fee entitlement, like Florida’s Proposal for Settlement statutes, which essentially are sanctions for parties who unreasonably reject settlement offers.

 

How is an arbitration proceeding different than a lawsuit?

An arbitration proceeding is overseen by an arbitrator or panel of arbitrators instead of a judge.  In most cases, discovery in an arbitration is limited.  There also will be a final arbitration hearing instead of a trial.  An arbitration hearing is a less formal proceeding.  Many times, the Florida Rules of Evidence are not applicable or are not enforced.  The arbitrator or panel normally will issue a written arbitration award that explains who prevails and what damages they are entitled to recover.  If the losing party does not voluntarily pay the arbitration award, it is necessary to petition a court to “confirm” or convert the award to a judgment.  The judgment is then enforced against the losing party.  In certain circumstances, arbitration proceedings can be much more efficient and cost effective than lawsuits.  However, there are downsides to arbitration proceedings, including very limited rights to appeal an arbitration award.

 

Adam C. King –  Florida business and construction law attorney.

 

Please consult a licensed attorney if you suspect your home may have a construction defect.

You can contact me at aking@akinglegal.com if you have any questions regarding construction defect claims.