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

By: Jeff Lieser Posted on: Sunday, April 19th, 2020

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.