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Construction

RECENT AMENDMENT TO CHAPTER 558: PRE-SUIT NOTICE FOR CONSTRUCTION DEFECTS NO LONGER TOLLS THE STATUTE OF REPOSE

Florida Statutes Chapter 558, also known as the Florida Construction Defect Statute, imposes a requirement that property owners must provide a “notice of claim” to developers, contractors, subcontractors, suppliers, and/or design professionals, which identifies construction defects before any lawsuit concerning those construction defects may be initiated. The purpose is to provide parties an alternative method to resolve construction disputes, reducing the need for litigation.

If a property owner fails to send a notice of claim before filing suit, certain legal rights may be delayed or lost. Similarly, if a property owner fails to file a lawsuit within a given time period, any claims regarding alleged construction defects will be time-barred.

Stucco Construction DefectGenerally, in Florida, a lawsuit for construction defects must be brought by a property owner within four years. The timing for the statute of limitations begins upon the later date of the owner’s possession of the property, the issuance of a certificate of occupancy, the abandonment of construction if not completed, or the completion or termination of the contract for work.

Under no circumstances may “an action” for construction defects be brought after ten years, the statute of repose under Florida Statutes Chapter 95.11(3)(c). “An action” is broadly defined by Chapter 95 as a “civil action or proceeding.”

In a recent case before the Fourth District Court of Appeal – Gindel v. Centex Homes, 267  So. 3d 403 (Fla. 4th DCA 2018) – the court looked at whether the pre-suit notice under Chapter 558 qualified as “an action,” as defined by Chapter 95. The short answer was: Yes, compliance with the notice requirement of Chapter 558 qualified as “an action” for purposes of the statute of repose. This ruling effectively extended the date by which a lawsuit could be filed. So long as a property owner provided pre-suit notice, which qualified as “an action” under Chapter 95, they could later pursue a lawsuit for construction defects, even if it was beyond the ten-year mark.

Following the decision in Gindel, the Florida Legislature amended Chapter 558, Florida Statutes, to add Section 558.004(1)(d), which provides: “A notice of claim served pursuant to this chapter shall not toll any statute of repose under Chapter 95.” The amendment will be effective starting July 1, 2019.

With the newly added language, it appears the Florida Legislature sought to correct the ruling reached in Gindel, intending for its statutorily mandated cut-off of ten years within Chapter 95 to really mean just that, ten years. While the newly amended Chapter 558 does not expressly state that a “notice of claim” is not “an action” for purposes of the statute of repose, contrary to the decision in Gindel, Section 558.004(l)(d) has the same effect. To interpret otherwise would render Section 55 8.004(1 )(d) meaningless.

To navigate the change and ensure a case for construction defects is timely and proper, it is recommended that you consult with an experienced construction attorney. At Lieser Skaff Alexander, our attorneys have extensive experience in dealing with Chapter 558 and can assist you or your business with your construction defect matter.

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Construction

Jeff Lieser Consults with Channel 8 on Tampa’s Tempo High-Rise Construction Defects

Jeff Lieser Consults with Channel 8Only 90% complete, Tampa Housing Authority’s newest residential high-rise, the Tempo, is already plagued with problems. This leaky building is flawed by construction defects that may cost taxpayers more than their original $26 million dollar investment. Chanel 8 On Your Side reached out to Lieser Skaff Alexander attorney Jeff Lieser and requested that he review a report delivered to the THA regarding construction problems that included windows installed upside down.

Jeff found many areas of concern that will cost hundreds of thousands of dollars just to litigate. Correcting the water leaks and other problems that can lead to mold and a toxic environment will cost even more to resolve. Although the THA insists that the taxpayers will not foot the bill for this disaster, Jeff isn’t so sure. “I’m one of those taxpayers and I’m concerned,” he told Chanel 8.

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Construction

Tampa Construction Defect Lawyers Protecting Florida Homeowners’ Rights Under KB HOME Settlement

The Florida Attorney General’s Office struck a settlement deal with homebuilder KB HOME. After a three-year investigation, the AG found evidence that the company violated Florida law by (1) not informing homeowners that their homes violated building codes and were not constructed according to original plans and specifications, and (2) denying warranty coverage to homeowners who were otherwise covered. The settlement requires KB HOME to repair homes that meet a certain criteria and pay out-of-pocket expenses to current and former homeowners who had to leave their homes due to construction defects or repair work conducted by KB HOME.

Is your home eligible for repairs under the KB HOME settlement?

First, you must currently own a KB HOME in Florida and the original homeowner must have bought the home after April 17, 2005.  Second, whether your home qualifies for repairs depends on:

  • The age of your home
  • The size of a stucco crack
  • Whether your home has delaminated stucco
  • Whether your home has been repainted
  • Whether your home has been vacant at any time for more than 270 days.

You have until August 10, 2017, to request repairs. KB HOME will assess whether you qualify for repairs or the extent of repairs needed. If you disagree with KB HOME’s assessment, a company named Bonded Builders will be decide all repair disputes. If KB HOME makes repairs to your home, you will be asked to sign a waiver that extinguishes your right to file a lawsuit against KB HOME based on construction defects existing before the date of the waiver.

Are you eligible for reimbursement of out-of-pocket expenses?

You may qualify for reimbursement if you are now own or previously owned a home built by KB HOME in Florida since April 17, 2005, and have paid out-of-pocket expenses directly caused by a construction defect in your home or the repairs carried out by KB HOME. The expenses must have occurred before February 10, 2016, and you must submit proof of loss (photographs, cancelled checks, credit card statements, receipts) along with your claim by August 10, 2017. Claims are for property loss only. Claims for lost wages, emotional distress and loss of equity are not allowed. If your claim is accepted and it is for more than $500, you will be asked sign a waiver that extinguishes your right to file suit against KB HOME based on construction defects existing before the date of the waiver.

You are not eligible for reimbursement if (1) on the date of February 10, 2016, you were individual homeowner or a member of a homeowners’ or condominium association represented by an attorney and were in litigation with KB HOME; or (2) as individual homeowner or as member of a homeowners’ or condominium association represented by an attorney, you had served a written notice on KB HOME to make repairs that had not been resolved by February 10, 2016. In addition, homeowners’ associations, condominium associations and properties owned by a lender, bank or the government cannot claim reimbursement.

Will you receive the full amount of your expense claim?

Possibly. A claims administrator will decide whether to pay your claim. You may receive a percentage of your claim up to the full amount requested. You won’t know how much you will receive until after August 10, 2017, when all the claims have been received. The claims administrator makes the final decision about your claim.

How can Lieser Skaff Alexander help you?

Our experienced Tampa Construction Defect Attorneys can you help you determine whether your home qualifies for repairs under the settlement and assist you in negotiations with KB HOME and Bonded Builders if necessary. If you do not qualify for repairs under the settlement, we will help you explore legal options, such as filing a construction defect and breach of warranty lawsuit. We can also assist you in filling out your claim for reimbursement of expenses and help you gather the necessary documentation to support your claim. Let us help you protect your legal rights.

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Construction

Hiring Unlicensed Contractors Could Lead to Trouble

Handsome Hispanic engineer doing some design work and remodeling a house

It’s tempting to hire an unlicensed contractor.  Their services are low cost, and you are not even legally obligated to pay them.  In Florida, unlicensed contracting can be a misdemeanor or felony, depending on the facts.  Consequently, unlicensed contractors generally possess no contract or lien rights.

On the other hand, you have the right to enforce the contract against the unlicensed contractor.  The contractor and the surety (if there is one) are liable for poor workmanship or incomplete work.  This is true even if you knew the contractor was not licensed before you entered into the contract.  See Earth Trades v. T&G Corp., 108 So. 3d 580 (Fla. 2013).

So what are some of the negatives of hiring an unlicensed contractor?

  • It’s illegal to knowingly hire an unlicensed contractor.  If the state learns that an unlicensed contractor is doing work for you, it may issue a cease and desist notice requiring you to stop the work, resulting in construction delay costs.  You could face fines up to $5,000, and if you are a licensed contractor hiring an unlicensed subcontractor, your license to do business may become suspended or revoked.
  • You are responsible for any damages and worker injuries occurring during the project inasmuch as unlicensed contractors often lack general liability and workers’ compensation insurance.
  • The work of an unlicensed contractor is often shoddy, requiring you to hire a licensed contractor to make the repairs.  You could wind up paying more money for the job than if you had hired a licensed contractor in the first place.

You should think twice before doing business with an unlicensed contractor.  If the state is investigating you for hiring an unlicensed contractor, or you have a contract dispute with an unlicensed contractor, contact the experienced Tampa construction law attorneys at Lieser Skaff Alexander to discuss your options.

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Construction

Tampa Construction Defect Claims: Real and Synthetic Stucco Cracks and Water Damage Caused by Improper Installation

If properly installed and maintained, real cement stucco and synthetic stucco (properly called EIFS-Exterior Insulation and Finishing Systems) can both last for the life of the home. These systems are designed to shed rainwater immediately with only small amounts absorbed but dried out by the sun and wind. Stucco’s life span is dramatically reduced, however, when water passes through small hairline cracks. Trapped and unable to dry out, water saturates and rots the plywood or oriented strand board sheathing and framing, creating a breeding ground for toxic mold.

Florida HouseFaulty Stucco Installation

Channel 8, WFLA.com, ran a story (with contributions by Jeff Lieser) recently about an Apollo Beach homeowner who experienced stucco failure due to improper installation. After noticing small cracks in the stucco exterior of his home, he removed a section of the stucco and found rotten wood and mold underneath. An expert in stucco defects inspected the home and noted several reasons for the water intrusion:

  1. Stucco layers were too thin and were thus prone to cracking.
  2. Paper backing was lapped incorrectly, producing thin areas prone to cracking.
  3. Points where stucco intersected with windows lacked caulking to prevent water entry.

Other common reasons for cracking and water entry are:

    • Real stucco not cured properly
    • Water-resistant barriers not installed properly
    • Kick-out flashings not installed properly
    • Control joints not installed properly

A hairline crack can allow gallons of water to enter during one of Tampa’s rains, and if the stucco system as a whole was improperly installed, the damage can be catastrophic. Indeed, the expert informed the homeowner that all of the second floor stucco of the home had to be removed and replaced.

Builder Refuses to Repair

The home was built in 2006 and sat unoccupied for some time until the homeowner purchased it in July, 2013, as a bank-owned foreclosure. At this time, a home inspector had observed a few small cracks, but the homeowner went ahead with the sale after being assured by the builder that any necessary repairs would be covered by warranty through 2016. Now the builder denies that the warranty applies because the home was not maintained when no one lived there. The builder asserts that the cracks should have been caulked and sealed as part of the general maintenance required of every home.

That may be true, but every serious problem with stucco can be traced back to installation errors. Hairline cracks will develop in real and synthetic stucco over time due to normal internal and external forces. But moisture intrusion should not be a problem if the weatherproofing components were properly installed at the time the home was built.

Do You Have Water Damage?

You may not know for years whether your stucco-clad home has sustained water damage, rot and mold. Visual inspection often doesn’t reveal internal water damage. The best way to diagnose water damage is to hire a professional water intrusion expert to test your home at least annually for the presence of moisture in the interior wall cavity of your home.

If your inspector determines that that your stucco system has suffered water damage and needs repair, removal or remediation, you should make a demand on your builder to fix the problems. If he refuses, you should contact the Tampa construction defect attorneys at Lieser & Skaff to discuss your available options. We try to resolve your case without resorting to litigation, but if filing a lawsuit becomes necessary, we work with your insurer, contractors and other parties to resolve the dispute as quickly and efficiently as possible

Deadline to File Stucco Lawsuit

If the statute of limitations for filing a construction defect lawsuit is quickly approaching, our Tampa building defect attorneys will suggest that you sue all potentially liable parties to preserve your legal claims. In Florida, you must file suit within four years after discovering the water damage, but in no event can you sue after 10 years from the date the construction of the home was completed.

For example, the Apollo Beach resident’s home was built sometime in 2006. He would have to file a complaint against the builder by sometime in 2016 if the builder refuses to make the repairs. The homeowner has a 10-year construction warranty, but let’s assume that it was for only five years and had expired in 2011. The homeowner would still have until 2016 to take legal action. Note that he would not have until 2018, which is four years after he discovered the damage, because the law does not permit a homeowner to sue a builder more than 10 years after the home was built.

Source:  WFLA.com, Fla. homeowners with building defects have protection, Shannon Behnken, June 5, 2014.

Categories
Construction

Protecting Lienors and Property Owners During Home Improvement

This is an overview of the actions that construction lienors and property owners should take to protect themselves in the event that lienors are not paid for improvements they made to the owner‘s property.

Lienors Must Serve a “Notice to Owner” to Recover on a Claim of Lien

Kitchen Remodel in Private Home Subcontractors, sub-subcontractors and materialmen who have not contracted directly with the owner to make improvements to the owner’s property must serve a “Notice to Owner” upon the owner and all parties listed in the “Notice of Commencement.”  This notice must be served before commencing work or within 45 days after the labor, materials or services were first provided and before the owner pays the full amount due. The “Notice to Owner” should contain:

  • The lienor’s name and address
  • A description of the owner’s real property
  • A description of the services or materials provided or to be provided

Service of the “Notice to Owner” is a statutory prerequisite to recording a claim of lien. The lienor’s failure to timely serve the notice is a complete defense to enforcement of the claim of lien against the owner’s property.

Categories
Construction

Preventing Commercial Landlord Liability for Tenant Improvements

Many commercial landlords face a common but preventable problem: construction lien liability for tenant improvements. This issue comes up when the tenant voluntarily hires contractors to make improvements to the landlord’s property but fails to pay them in full. To recover the monies owed to them, the contractors file construction liens against the landlord’s property and sue the landlord to foreclose on the liens.

Construction PlansConstruction liens cloud the landlord’s title to the real property and can prevent its sale or refinancing. Additionally, landlords can be held liable to construction lienors, such as general contractors, subcontractors and materialmen, for improvements they made for the tenant. Consequently, landlords must take certain actions to shield themselves from liability against tenant improvement construction liens.

Review the Lease Agreement

The lease agreement should not contain express or implied language that requires the tenant to do anything to improve the property. If the lease agreement obligates the tenant to make improvements, any liens arising from those improvements can attach to the landlord’s real property interest.