Construction / design defects are an unfortunate byproduct of construction. If you are an owner or association and experience defects, you will become familiar with Florida Statutes Chapter 558 since this Chapter deals with defects and serving a written notice of the defects. Likewise, if you are a contractor, design professional, supplier, or subcontractor and defects are asserted against you, you will also become familiar with Chapter 558. This Chapter requires a claimant to serve written notice of the defects (identifying the defects with sufficient detail) to the responsible parties as a condition precedent before filing a construction / design defect lawsuit against those parties.
A party experiencing construction / design defects or the recipient of a written notice of defects should engage counsel to assist with preserving rights under Chapter 558 and drafting a written notice or response, as applicable. Below is a synopsis of important time limitations requirements for claimants serving a written notice of defects and parties receiving a written notice of defects:
Florida Statutes Chapter 558 Procedure
1) Claimant 60 days before filing construction defect / design defect lawsuit shall serve written notice on contractor, design professional (or others, as applicable) of the defects. The written notice shall reference Florida Statutes Chapter 558 and shall describe the defects with sufficient detail. This written notice tolls the statute of limitations relating to the party and any applicable bond until the later of 90 days after service of the written notice (or 30 days after any repair or payment period settlement option).
2) The party receiving the written notice is entitled to perform a reasonable inspection within 30 days of receiving the written notice. The party may undertake destructive testing under reasonable terms and conditions set forth in more detail in Florida Statute s. 558.004(2).
3) The party receiving the notice may serve a copy of the written notice to each party it believes responsible for the defect within 10 days of receiving the written notice from the claimant (e.g., subcontractors). This notice is not to be construed as an admission by the party. The party receiving the notice may conduct an inspection per section 2).
4) The party receiving a copy of the written notice per section 3) must serve a written response to the party it received the written notice from within 15 days after service of the copy of the notice. The response shall include whether the party is willing to make repairs and, if so, what repairs or whether the claim is disputed.
5) The party receiving the initial written notice per section 1) shall serve a written response to the claimant within 45 days after service of the claim. The response shall include: 1) whether the party is willing to make repairs and, if so, what repairs; 2) a monetary offer; 3) a combination of money and scope of repairs; or 4) a dispute of the claim. If a party disputes the claim or fails to timely respond to the written notice, the claimant can proceed with a lawsuit against the party. If the claimant accepts or rejects a repair or monetary settlement option, it must do so within 45 days after receiving the option.
Notably, if the claimant is an association representing more than 20 parcels the time limitations identified above are extended, but everything else remains the same:
1) Claimant shall give the written notice at least 120 days before filing the lawsuit. This written notice tolls the statute of limitations relating to the party and any applicable bond until the later of 120 days after service of the notice (or 30 days after any repair or payment period settlement option).
2) The party receiving the written notice is entitled to perform a reasonable inspection within 50 days.
3) The party receiving the notice may serve a copy of the written notice to each party it believes responsible for the defect within 30 days of receiving the written notice from the claimant.
4) The party receiving a copy of the written notice per section 3) must serve a written response to the party it received the written notice from within 30 days after service of the copy of the notice of claim.
5) The party receiving the initial written notice per section 1) shall serve a written response to the claimant within 75 days after service of the claim.
There is more to Chapter 558 than what is set forth above. Again, a party experiencing defects or provided a written notice of defects should consult counsel to ensure their rights are protected moving forward.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.