1. Introduction: 15 minutes
A. Purpose of Fla. Stat. Chap. 558: A pre-Lawsuit mechanism intended to be “…an alternative method to resolve construction [defect] disputes that would reduce the need for litigation as well as protect the rights of property owners.” Fla. Stat. § 558.001
- In plain English: a pre-lawsuit notice and opportunity to cure provision for construction defects.
- A “construction defect” can give rise to many claims (i.e. breach of contract, breach of warranty, negligence, etc.). Fla. Stat. Chap. 558 creates a method for resolving such claims prior to litigation.
- Fla. Stat. Chap 558 in and of itself does not create a new “claim” or cause of action for an owner.
B. When does Fla. Stat. Chap. 558 apply?
- When a property owner (a claimant) asserts a claim or action for damage to or loss of real or personal property caused by an alleged construction defect to a project that has reached at least substantial completion. Fla. Stat. § 558.002.
C. Who does Fla. Stat. Chap. 558 apply to?
- All property owners (including condominium and homeowners associations), prime contractors, subcontractors, design professionals, developers, material suppliers and manufacturers engaged in construction improvements. Fla. Stat. § 558.002.
- In years past, Fla. Stat. Chap. 558 was an “opt in” Statute and required a notice to be contained in the contract for the Statute to apply. Presently, no “notice” or “warning language” is required in contract for the statute to apply (although you can opt out as we will see shortly).
a. Given the nature of the construction industry, there is a fair likelihood you will see a “558 Notice” at some time in your career.
b. Knowing how to correctly process a 558 Notice will benefit you and your firm.
D. We will use a hypothetical fact pattern to add life to our topic:
- Super-Lux Condominium was developed by Ginormous Development and completed in 2012. Ginormous Development contracted with ABC Contracting as its prime contractor. Rad Roofing performed the roof installation and Clutch Windows performed the window installation. McStudd’s Masonry and Concrete performed all concrete work. Smokey’s was the fire proofing subcontractor and worked under a hand shake agreement only. All other subs had written subcontracts.
- Super-Lux Condominium was turned over to the board and shortly thereafter the board performed inspections of the property. The board claims the building has water leaks from the roof area and the windows, among other alleged issues. The association also claims that a hidden bee infestation has created a hazard because the hive is lodged into the cavity of an exterior wall. Finally, certain interior walls do not have an appropriate fire rating.