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Article
Courtesy of JD SUPRA
By Jason Bullinger
Published February 27, 2022
In late December 2022, the Florida
Legislature proposed changes to the Florida Statute of
Repose for Construction Defects to clarify a statute with
ambiguous language. The statute is used to determine how
long a party has to file a claim for construction defects
after a structure or improvement has been completed.
When Does the Statute of Repose Start to Run?
How Florida’s 10-year statute of repose period is calculated
has been somewhat of an open question for some time. In its
current form, the statute of repose starts to run from the
latest of the following four events: 1) the date of actual
possession by the owner, 2) the date of the issuance of a
certificate of occupancy, 3) the date of abandonment of
construction if not completed, or 4) the date of completion
of the contract or termination of the contract between the
professional engineer, registered architect, or licensed
contractor and his or her employer. Fla. Sta. 95.11(c).
After the 10-year period expires, a claim is cut off or
extinguished, and can no longer be brought. Recent efforts
by attorneys who regularly represent homeowners and
condominium associations have fought to push any event
triggering the running of the statute as far back as
possible, and in some cases, 15 years or more after a
contractor finishes their work and is paid for the job. This
leaves contractors and design professionals wondering
when—if ever—they can discard old records and move on.
Proposed Bill Attempts to Clarify and Change the Repose
Period
House Bill 85 was introduced on December 29, 2022 and is the
Florida legislature’s attempt to add clarity to the statute.
Specifically, the most significant change is to the
triggering events, which, if legislation passes, would be
revised to read:
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the issuance of a temporary certificate of occupancy,
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the date of the issuance of a certificate of
occupancy,
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or the date of issuance of a certificate of
completion.
The repose period would start to run seven years from the
earliest of the three events. And if any of the above three events have not
occurred, the statute starts to run seven years after the abandonment of
construction or the date of the completion or termination of the contract
between the professional engineer, registered architect, or licensed
contractor and his or her employer, whichever date is earliest.
Additional Proposed Changes
The statute also provides a carve-out for multi-dwelling buildings, setting
each dwelling unit apart for the purpose of determining the limitations
period. Most notably, the proposed revised statute eliminates the trigger
concerning the “actual possession by the owner.” Just who is defined as the
“owner” for the purpose of the statute has been unclear for years. Instead
of trying to define whether that could be things the developer, related
corporation, or the first natural person to buy the dwelling and live in it,
the statute simply removes that phrase in its entirety.
Past Attempts to Renovate the Statute
This is not the legislature’s first attempt to renovate the statute. In
2017, the legislature added language to clarify what was meant by the
“completion of the contract” between the contractor, engineer, and
architect. See House Bill 377 (2017). However, this amendment failed to
address what has become a more contested issue, which is who was meant to
serve as the “owner” with respect to the triggering event of the “actual
possession by the owner.” See, e.g., Sabal Chase Homeowners Association,
Inc. v. Walt Disney World Co., 726 So.2d 796 (Fla. 3d DCA 1999); Harrell v.
Ryland Group, 277 So.3d 292 (Fla. 1st DCA 2019).
Proposed Bill Reinstates Original Purpose of Statute
Florida’s statute of repose for construction claims was originally designed
to protect contractors from stale claims. Memories fade, and when
questioned, contractors often fail to recall specific details on the work
they did sometimes well beyond 10 years before the lawsuit is filed. When a
project involves dozens of subcontractors and multiple structures, the
problem can be compounded. This puts both contractors and their counsel at a
disadvantage when defending against these claims. The new bill is a welcomed
attempt to add clarity to the triggering events that start the running of
the repose period and is a benefit to contractors and design professionals
who work in Florida.
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