ALL OWNERS MUST GIVE NOTICE OF DEFECTS - CHAPTER 558
By: Randall Gilbert, Esq. ♦
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♦ Randall
L. Gilbert, was born in |
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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.
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
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.
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.
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.
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
Respond to 1st Recipient’s offer
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