ALL OWNERS MUST GIVE NOTICE OF DEFECTS - CHAPTER 558

 

By: Randall Gilbert, Esq. ♦

 

  Randall L. Gilbert, was born in Miami, Florida, has argued to the Supreme Court of Florida and the District Courts of Appeal, Recipient of the National Institute of Trial Advocacy Award, 2003. Florida Certified Master Plumbing Contractor’s license, 1993; Member of Attorneys’ Title Fund, Vice Chairman of the Broward County Construction Lawyer's Association, 2005-2006; Broward County Bar Association; Licensed Florida Real Estate Agent, 2005; Admitted to Florida Bar, 1999, Practices in U.S. District Court, Southern and Northern Districts of Florida, 2000. Education: University of Florida (B.A., 1996); Nova Southeastern University, Shepard Broad Law Center (J.D., 1999). Practice Areas: Construction Litigation; Commercial Litigation; Contracts; Corporate; Appeals, and Real Property. Email: Randall L. Gilbert

 Firm Profile: The Firm counsels the construction industry primarily dealing with all sizes of State and Federal litigation and arbitration. Typical claims include licensure, construction liens and bonds, Non-payment, DBPR complaints, bidding, delays, defects, contract preparation and negotiation. 

 

Introduction to Notices of Claim

Prior to filing a lawsuit for claims arising out of a “construction defect,” a property owner must, as a precondition to filing a lawsuit or arbitration, “Serve” a “Notice Of Claim” to the contractor, subcontractor, supplier, or design professional that the owner asserts is responsible for the defect, and provide an opportunity to resolve the claim.  The law applies to both residential and commercial projects.

 

Emergency Repairs excluded.

However, an Owner may make any “necessary emergency repairs to the dwelling as required to protect the health, safety, and welfare” of the Owner.

 

Failure to Serve Notice of Claim before instituting an action?

If an owner files an action alleging a construction defect without first serving a Notice of Claim on the other party, then upon the other party’s request, the court must abate (i.e. stop) the action, which may not proceed until the owner complies with such requirements.[1]

 

Construction defects defined?

A "Construction defect"[2] means 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 resulting from:
(a) Defective material, products, or components used in the construction or remodeling;
(b) A violation of the applicable codes in effect at the time of construction or remodeling;
(c) A failure of the design of real property to meet the applicable professional standards of care at the time of governmental approval; or

(d) A failure to construct or remodel real property in accordance with accepted trade standards for good and workmanlike construction at the time of construction.

 

Method of serving the Notice of Claim?

The Notice of Claim must be served by the Owner by delivering it certified mail, return receipt requested, to the last known address of the addressee.[3]  If the construction defect claim arises from work performed under a contract, the written notice of claim must be served on the person with whom the Owner contracted.[4] 

 

What should be included in the Notice of Claim?

(1)   The Notice Of Claim must state that it is “being written pursuant to Florida Chapter 558;[5] and

(2)   Describe the claim in reasonable detail sufficient to determine the general nature of each alleged construction defect and a description of the damage or loss resulting from the defect, if known[6]

 

 

What are the timelines once a Notice of Claim is served by the Owner?

 

PRIOR TO THE OWNER FILING AN ACTION

1.         60/120[7] days prior to filing an action the Owner must serve a Notice of Claim.

 

Flowchart: Alternate Process: OWNER Flowchart: Alternate Process: 1st 
RECIPIENT
 

 


                                    Notice of Claim

 

 

 

AFTER THE 1st RECIPIENT RECEIVES THE NOTICE OF CLAIM FROM THE OWNER, THE 1st RECIPIENT HAS:

 

2.         10/30 days from receipt of the Notice of Claim for the 1st Recipient to:[8] 

a.         Forward the Notice of Claim to persons he/she believes is responsible; and

b.         Note the specific defect for which he/she believes the person is responsible

 

Flowchart: Alternate Process: 1st 
RECIPIENT
Flowchart: Alternate Process: Secondary 
RECIPIENTS believed to be responsible
 

 


                                    Forward Notice of Claim

 

 

 

 

AFTER SECONDARY RECIPIENTS RECEIVE THE NOTICE OF COMMENCEMENT FROM THE 1st  RECIPIENT:

 

3.         15/30 days of receiving Notice of Claim from the 1st Recipient for the Secondary Recipient to: [9]

a.         Respond to 1st Recipient which must include: (1) A report, if any; (2) The scope of inspection; (3) Findings and results of the inspection; (4) Statement whether willing to make repairs, disputes, description of the repairs willing to fix, and; (5) Timetable for completing the repairs.

·        As a practical matter, this gives Secondary Recipients of the Notice of Claim a very short time to inspect the property (see next paragraph below) and therefore should immediately fax or send by certified mail a demand to inspect the property to the owner and the 1st Recipient.

Flowchart: Alternate Process: Secondary 
RECIPIENTS
Flowchart: Alternate Process: 1st 
RECIPIENT
 

 


                                    Respond to Notice of Claim

 

 

 

4.         30/50 days from 1st Recipient receiving the Notice of Claim from the Owner for the 1st Recipient and the Secondary Recipients to:[10]

a.                   Conduct an Inspection of Owner’s Property

b.                  The Initial Recipient must coordinate timing and manner of any and all inspections with the Owner to minimize the number of inspections; and

c.         Must notify the Owner in writing if destructive testing is desired.

 

Flowchart: Alternate Process: 1st 
RECIPIENT
and
Secondary 
RECIPIENTS
Flowchart: Alternate Process: OWNER
 

 


                                    Inspect Owner’s Property

Notify if destructive

testing is needed

 

 

 

 

5.         45/75 days from 1st Recipient receiving the Notice of Claim from the Owner for the 1st Recipient to: [11]

a.                   Serve a written response to the Notice of Claim on the Owner or its representative which must provide:

(a)    A written offer to remedy the alleged construction defect at no cost to the Owner, a detailed description of the proposed repairs necessary to remedy the defect, and a timetable for the completion of such repairs;

(b)   A written offer to compromise and settle the claim by monetary payment, that will not obligate the person's insurer, and a timetable for making payment;

(c)    A written offer to compromise and settle the claim by a combination of repairs and monetary payment, that will not obligate the person's insurer, that includes a detailed description of the proposed repairs and a timetable for the completion of such repairs and making payment;

(d)   A written statement that the person disputes the claim and will not remedy the defect or compromise and 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 within 30 days after notification to the insurer by means of forwarding the claim, which notification shall occur at the same time the Owner is notified of this settlement option, which the Owner can accept or reject. A written statement under this paragraph may also include an offer under paragraph (c), but such offer shall be contingent upon the Owner also accepting the determination of the insurer whether to make any monetary payment in addition thereto. If the insurer for the person receiving the claim makes no response within the 30 days following notification, then the Owner shall be deemed to have met all conditions precedent to commencing an action.

Flowchart: Alternate Process: 1st 
RECIPIENT
Flowchart: Alternate Process: OWNER
 

 


                                 Respond to Notice of Claim

 

 

 

 

AFTER OWNER RECEIVES WRITTEN RESPONSE FROM 1sT RECIPIENT[12]

6.         45/45 days for Owner to Accept or Reject the offer by serving written notice of such acceptance or rejection

 

Flowchart: Alternate Process: OWNER	Flowchart: Alternate Process: 1st 
RECIPIENT
 

 


                                 Respond to 1st Recipient’s offer

 

 

 

 

 


THE INFORMATION YOU OBTAIN AT THIS SITE IS NOT, NOR IS IT INTENDED TO BE, LEGAL ADVICE. YOU SHOULD CONSULT AN ATTORNEY FOR INDIVIDUAL ADVICE REGARDING YOUR OWN SITUATION.

 

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[1] 558.003     Fla. Stat. (2006)

[2] 558.002(4) Fla. Stat. (2006)

[3] 558.002(8) Fla. Stat. (2006)

[4] 558.004(1) Fla. Stat. (2006)

[5] 558.004(1) Fla. Stat. (2006)

[6] 558.004(1) Fla. Stat. (2006)

[7] The second number of days is only for “association representing more than 20 parcels” and the first number of days is for all other projects.

[8] 558.004(3) Fla. Stat. (2006)

[9] 558.004(4) Fla. Stat. (2006)

[10] 558.004(2) Fla. Stat. (2006)

[11] 558.004(5) Fla. Stat. (2006)

[12] 558.004(7) Fla. Stat. (2006)