Florida Legislature Makes Another Run at Revising the Statute of Repose for Construction Defects

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:

  1. the issuance of a temporary certificate of occupancy,

  2. the date of the issuance of a certificate of occupancy,

  3. 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.