The Construction Defect Notice and Repair Process

Facing the possibility of being sued is an unfortunate part of doing business, and those in the construction industry are no exception to this rule. When a person contracts to build or renovate space, the work performed may not be up to par, or the owner may have unrealistic expectations. In either case, the client may seek a legal remedy to recover for a construction defect and any additional perceived losses. Litigation is expensive and pulls time and resources away from the daily operation of the company. Florida legislators recognized the benefit to both parties of avoiding court intervention, and passed a law in 2003 that mandated providing pre-suit notice of an intent to make a construction defect claim that provides an alternative resolution option to litigation. Contractors, suppliers and design professionals may not fully understand the purpose of these notices, nor their rights to resolve a claim before it finds its way into court. A discussion of what the notice must include, and how contractors and other professionals are permitted to respond under Florida law, will follow below.

Contents of a Valid Notice

Any time an owner wishes to make a construction or design defect claim against a contractor, supplier, subcontractor or design professional, written notice must be provided to the individual/entity who performed the work, as well as his/her insurance carrier. As noted, this notice is meant to provide an avenue to resolve a claim through private negotiation over court involvement, and legal action is barred until this pre-suit process is complete. This notice is supposed to be sent within 15 days of discovering a defect, as this allows the contractor, subcontractor, or other responsible party a better opportunity to assess the situation, though exceeding this timeline does not bar or restrict further action. However, a claimant is restricted from taking formal action until established timelines elapse: 60 days for projects with less than 20 parcels, and 120 days for projects greater than 20. The notice itself must specifically reference the applicable statute, and further describe each alleged defect in detail and any resulting loss, if known. In addition, the claimant must at least conduct a visual inspection and report on the location of each alleged defect so the contractor or other professional can reasonably locate the issues without undue effort.

Options for Responding

Once notice is received, the contractor, subcontractor, supplier, or design professional have 30 days (for projects of less than 20 parcels) to inform the claimant of an intent to conduct an inspection of the alleged defects (projects that exceed 20 parcels have 50 days), so they may determine the extent and nature of each defect and how they may be fixed. The claimant is obligated to allow reasonable access during normal working hours to view the relevant parts of the property, and the inspection may include destructive testing under mutual agreement. Beyond the inspection, the contractor, subcontractor, supplier, or design professional have 45 days for projects less than 20 parcels, and 75 days for those above 20, to provide a written response that states one of the following:

• an offer to fix any defects at no cost to the claimant;
• an offer to compromise and settle the claim through monetary payment;
• an offer to compromise and settle the claim through a combination of repairs and monetary payment;
• a rejection of the claim as disputed and no offer to remedy the alleged defect or to compromise and settle the claim; or
• an offer to provide a monetary payment as determined by the contractor’s insurer once served.

If the contractor, subcontractor, supplier, or design professional disputes the claim and offers no remedy, or fails to respond within the required timeframe, the claimant can proceed with legal action without further notice. As this discussion reveals, construction defect claim notices must be handled in a prescribed manner, and not doing so can result in the loss of important rights. Thus, an experienced construction law attorney should be consulted as soon as an issue arises.

Contact an Experienced Attorney

Dealing with unhappy clients is never a pleasant experience, but accusations of construction defects should always be taken seriously. The experienced attorneys at Linkhorst & Hockin understand the nuances of complying with Florida construction defect law, and will fight to obtain a fair resolution. Contact the Jupiter law firm to schedule a consultation.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0558/0558.html