Due to the frequency of issues arising out of faulty construction, the Florida legislature has created an alternative method to resolve such disputes that would reduce the need for litigation while protecting the rights of property owners. Under the Florida Construction Defect Statute, a property owner or a condominium/homeowner’s association is required to send a written notice of claim to contractors, design professionals and/or developers to resolve alleged defects before resorting to further legal process.
What is a 558 Claim?
The FCDS applies to any claim for construction defects arising from improvements made after October 1, 2009, unless the parties have agreed in writing to opt-out of the requirements of Florida Statute 558. However, the FCDS does not apply unless there has been substantial completion of the building or improvements. The statute applies to all residential and commercial projects, such as:
- Single-family homes
- Residential construction
- Condominium units and defects in common areas and improvements that are owned or maintained by an association
- Mobile homes
- Manufactured or modular homes
- Remodeling and fixtures
The FCDS is not applicable to public transportation projects or to emergency repairs performed to protect the health, safety, and welfare of the claimant or others.
What is a Construction Defect under Florida Law?
The statute defines construction defects to include deficiencies in design, materials, construction, observation of construction, surveying, planning, repair alteration, supervision, remodeling, and building code violations.
What is a 558 Notice of Claim Letter in Florida?
The claimant (property owner or a condominium/homeowner’s association) must serve a written notice of claim on the allegedly liable party for the construction defects. The notice of claim must describe each alleged construction defect in reasonable detail. This description should be sufficient for the recipient to determine the general nature of each alleged defect. The notice of claim must be served at least 60 days before filing an action.
The recipient of the notice of claim is permitted reasonable access to the property for inspection in order to determine the cause and nature of each alleged construction defect. This also gives the respondent an opportunity to evaluate the extent of any repairs or improvements necessary to rectify each defect.
This inspection may be performed within 30 days after service of the notice of claim. However, for claims involving an association representing more than 20 parcels of land, the inspection may be performed within 50 days after service of the notice of claim.
How can I Serve a Notice of Claim under FCDS?
There are a few ways to serve a notice of claim under Florida Statue 558:
- Certified mail
- Hand delivery
What is the Statute of Limitations for a Claim under FCDS?
The statute of limitations prohibits construction defect claims 4 years after the claim accrues. However, claims involving latent defects do not accrue until the defect is discovered or should have been discovered. These are defects that are not easily observable to the naked eye. Although it seems like one has unlimited time to bring a claim for latent defects, it is important to keep the statute of repose in mind. The statute of repose bars a plaintiff from bringing a claim for a latent construction defect 10 years after the latest of one of the following events:
- The date of the owner’s actual possession
- The date of the issuance of a certificate of occupancy
- The date of abandonment of the construction, if not completed; or
- The date of completion or termination of the contract between the engineer, registered architect, or licensed contractor and his or her employer.
What Happens After I Serve My 558 Claim?
The party receiving the notice of claim must give the claimant a written response within 45 days after the service of the Notice of Claim. This written response must provide one or a combination of the following:
- A written offer to cure all or a portion of the alleged construction defects;
- A written offer to settle the claim by monetary payment or a combination of repairs and monetary payments.
- A written statement disputing the claims or
- A written statement that a monetary payment, including any applicable insurance proceeds, will be determined by the respondent’s insurer within 30 days after the insurer has been notified.