Antonella Balladares BCN 3740 Legal Aspects Term Paper

Legal Aspects Term Paper

In construction not everything goes perfectly as planned and many times

lawsuits can occur because things weren’t done properly or something goes

wrong like a defect in the construction. The court has created statues that are

supposed to help set order and have owners and contractors solve their issues

rather than having to go to the court. Florida’s Construction defect statue Chapter

558 was created with that specific purpose of having the property owner and

ones responsible for a construction defect to resolve the issue amongst

themselves by finding a mutual solution that benefits both of them. However,

people in construction aren’t always very well informed about these statues

especially the owner. There are several rules and steps that have to be done if

there were a construction defect. So what does this Florida Statue for

construction defect really do?

Florida’s Construction defect statue, which is also referred as F.S. 558 is a

rule that requires owners to send a “notice of claim” to developers, contractors,

subcontractors, suppliers, and/or design professionals identifying any claimed

construction and/or design flaws or defects. The “notice of claim” must describe

in reasonable detail the nature of each asserted construction defect. If

information on the damage or loss resulting from the defect were available, that

too would be provided. The notice of claim must also identify the location of each

alleged construction defect adequately to enable the responding parties to locate

the alleged defect without causing any unnecessary harm. The claimant also

known as the property owner is not required to perform destructive or other

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testing for purposes of this notice. So this means that there are rules that the

owner must follow before being able to sue someone for a defect.

This statue was introduced in 2003 and construction lawyers, courts, and

arbitrators have fought on how to instill this in a practical matter to the procedure.

To many changes since then have felt like a necessity however, before getting

more in debt on the changes needed and flaws of the statue let me go a little

more into detail on the rules. So what would be considered a construction

defect?

What would be considered a construction defect would be from the

design, specifications, surveying, development, management, and observation of

construction, or construction, repair, adjustment, or renovation of real property

resulting. This would include defective material or products used in the

construction or remodeling. Any violations of the applicable codes in effect at the

time of construction or remodeling. Failure of the design of real property to meet

the applicable professional standards of care at the time of governmental

approval or failure to construct or remodel real property in accordance with

accepted trade standards for good and workmanlike construction at the time of

construction.

Where there is a failure to construct the building in a rational manner

and/or the building fails to perform in the manner that is envisioned by the buyer.

Some of the most common and high-cost construction defects are Structural

integrity (concrete, masonry & unstable foundation), expansive soils, mechanical,

and electrical. An example of construction defect for poor quality workmanship is

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water infiltration through some portion of the building structure. This can cause

an environment for the growth of mold or pest infestation. Another example of a

construction defect is material deficiencies. Windows that leak or are unable to

function effectively even when properly installed. And an example of a common

design defect would be the roof. A design defect of the roof can cause water

infiltration, poor drainage and an inadequate structural support.

Some key terms to understand for this statue to have are that the

contractor is the person that is legally engaged in the business of designing,

developing, constructing, manufacturing, repairing, or remodeling real property.

The design professional is the person that is licensed in the state as an architect,

interior designer, landscape architect, engineer, surveyor, or geologist. Real

property is the land that is improved and the improvements on such land,

including fixtures, manufactured housing, or mobile homes and excluding public

transportation projects. Service is delivery by certified mail with a United States

Postal Service record of evidence of delivery or attempted delivery to the last

known address of the addressee, by hand delivery. Subcontractors are the

people that are contractors who perform labor and supplies material on behalf of

another contractors in the construction or remodeling of real property. The

suppliers are the people that provide materials, equipment, or other supplies for

the construction or remodeling of real property.

The statute as mentioned above is meant to be an alternative method to

resolve construction disagreements that would reduce the need for litigation as

well as protect the rights of property owners. Parties have the options to choose
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to be out of the procedure at any time after a notice of claim has been given.

Opting out in the contract would not seem to help the contractor, because it

surely deprives the contractor and other potential defendants from being

educated through receipt of a description of the defect in “reasonable detail”.

Owners opt out of contracts avoiding Ch. 558; by doing this owners could

receive flexibility when a defect arises by arranging their own debate resolution

process that embraces conventional Ch. 558 features without being strictly

bound to the statute. Which can be done by incorporating a different resolution

procedure in the contract to serve as a prerequisite to litigation or arbitration.

By not being bound to the legal process, an owner can proceed forward

without being confronted by motions to abate for failing to satisfy the statutory

requirements. The current statutory process permits the contractor to specify any

time period to complete the reparation, leaving the issue is resolved on whether

the proposed time period is reasonable. The owner may choose to accept or

reject the offered repair within the offer time period. By twisting it into being a

different process, can benefit ongoing businesses to appear more appealing if

they are unable to wait for the repairs to be completed.

The plaintiff and receiver of the notice have an equal duty upon request to

exchange “all available discoverable evidence” related to the defect issue. If

either one of them fails to exchange the information, it would become punishable

by the court by consent.

Now there are time limitations for providing the construction defects. In

actions brought declaring a construction defect, the claimant shall, at least 60

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days before filing any action, or at least 120 days before filing an action involving

an association representing more than 20 parcels, serve written notice of claim

on the contractor, subcontractor, supplier, or design professional, as applicable.

Suppose the defect happens during construction work is being performed, the

written notice of claim must be served on the person with whom the claimant

contracted. The notice of claim must explain the claim in sufficient amount of

detail to determine the general nature of each alleged construction defect and a

description of the damage or loss resulting from the defect, if known. The

claimant must make an effort to serve the notice of claim within 15 days after

encountering of an alleged defect. Even thought it is preferred to be done within

the 15 days, it doesn’t necessarily stop the claimant from the filing of an action,

subject to chapter 558. However, subcategory does not stop a claimant from filing

an action sooner than 60 days, or 120 days as applicable, after service of written

notice.

After that is done there the person served with the notice of claim under

subsection is entitled to perform a reasonable inspection of the property or of

each unit subject to the claim to assess each alleged construction defect within

30 days after service of the notice of claim, or within 50 days after service of the

notice of claim involving an association representing more than 20 parcels.

Giving an association the right to access a property for maintenance or repair

also includes giving them access to have inspections. The claimant shall provide

the person served with notice and the person’s contractors or agents will receive

reasonable access to the property during normal working hours to inspect the
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property to determine the nature and cause of each alleged construction defect

and the nature and extent of any repairs or replacements necessary to remedy

each defect. Whoever is given the notice would then be able to coordinate the

timing and method of any and all inspections with the claimant. The inspection

may include destructive testing, however, that can only be done through mutual

agreement under specific terms and conditions.

The terms and conditions for destructive testing are the following, if you

have notice and find that destructive testing is essential in determining the

defects then you must notify the claimant in writing. The written notice must

describe the destructive testing that will be performed, who will do the testing,

and estimate on how much damage and repair is to be expected from the testing,

an estimate on the amount of time necessary for the testing and the amount of

finance necessary to cover all responsibilities. If the claimant does not approve of

the person chosen to perform the destructive testing, the person with the notice

shall provide the claimant with a list of three people that are qualified to preform

the testing so that the claimant can select one out of the three to do the testing.

The one selected to perform the testing must operate as an agent or

subcontractor of the person served the notice and must communicate with

he/she, submit any reports and be only responsible to the person with the notice.

There must also be mutual agreement to when the testing will be done.

The claimant or someone representing the claimant can be present to observe

the destructive testing. The testing will also not reduce the property uninhabitable

and there will be no construction lien rights for destructive testing caused by a
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person served with notice. The person that is given the notice may give a copy of

the notice of claim to each contractor, subcontractor, supplier, or design

professional that is believed to be responsible for each defect that is mentioned

in the notice of claim which can be given within 10 days after service of the notice

of claim or within 30 says after service of the notice of claim involving an

association. Then 15 days after providing the copy the notice of claim or within

30 days after service of the copy of the notice of claim, the contractor,

subcontractor, supplier, or design professional must provide a written response to

the person that served a copy of the notice of claim. The written response would

mention any inspection of the property, the findings and results of the inspection,

any statements on if they are agreeing to make repairs to the property and a

schedule on when the repairs would be completed.

Including all that you must also within 45 days after giving the notice of

claim or 75 days after a copy of the notice of claim is provided, the person that

was provided the notice must serve a written response to the claimant which will

contain one of five things written in it; a solution to the construction defect with a

specific description of the proposed repairs that are needed and a schedule of

when the repairs would be completed. An offer to settle the claim through

payment that will not obligate the person’s insurer with a schedule of when

payments will be done. An offer to settle repairs with a combination of repairs and

payments and containing a schedule of the completion of the repairs and when

payments would be done. The persons dispute the claim and no remedy or

compromise is needed to settle the claim or the monetary payment.

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If the claimant were to be given a settlement that provides a schedule, that

offer would be either accepted or rejected by the claimant in writing on whether it

is being accepted or rejected to the person making the offer. This must be done

within 45 days after receiving the offer. If the claimant takes any action before

accepting or rejecting the offer, the court put a halt on any actions until the

claimant has accepted or rejected. Now if the claimant choses to accepted the

repair offers to the defects in the construction, the claimant would provide the

necessary admission to his/her property during the working hours to the one

repairing so that they can do the repairs that the claimant had agreed on based

on the scheduled time agree on. If the one offering the repairs does not followed

the agreed time or method, the claimant is not allowed to continue with any

actions on the claim that is mentioned in the notice of claim or in the settlement

offer. However, if there is an emergency repair that is urgently need to be fixed

these rules should not stop the claimant from fixing it as soon as possible

because the health and safety of the claimant comes first.

The claimants written notice of claim goes by the laws of limitations valid

and involving anybody that is covered in chapter 558 until 90 days or 120 days

after service of the notice of claim or 30 days after the repairs have been

completed or the payments have been completed this depends on what offer the

claimant accepted. All of these procedures pertain to all construction defects but

more than one defect can be brought up in one notice of claim and as new

construction defects become known to the claimant it can be added on to the

original list of defects.

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Chapter 558 does not restrain any rights such as specific performance or

any defense or any new rights. However, the person given the notice of claim

must still comply with all contractual provisions of any liability insurance policy. If

requested the claimant and any person served with notice, within 30 days after

service of a written request, the request must cite the subsection, an offer to pay

the cost, any project drawings or specifications.

In the Florida Statutes it is required that all the people that are contracting

in residential or commercial projects must include a Notice of Claim clause in the

agreement. The property owner must wait 60 days before he/she can bring in

any legal action. Within those 60 days the owner must send the other party a

written notice of the defects as mentioned in the beginning paragraphs.

Some of pros of Chapter 558 are that it is able to keep defect claims out of

the courts by forcing the people to resolve their own issues. The fact that it

reduces the amount of court cases is also seen as a positive. It also forces the

parties involved to discuss solutions, which will most likely lead to a solution that

would mutually benefit both parties. However, there is also a possibility that a

contractor would take advantage of the owner who is not very informed with the

Florida Statues and attempt to resolve the defect his/her own way. And even

though that is a possibility the Statue provides a good way to negotiate

construction quarrels.

Having a construction defect on your property isn’t something you would

like to find on your property. Once you find that defect, you must take the steps

mentioned to preserve any evidence and declarations against any parties that
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are responsible. The Florida law didn’t always require a notice to be given before

a property owner can file suit for construction defects. Construction defects are

very common but knowing and understanding the steps you need to take, it

makes the process of solving the issue a lot easier.

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References:
https://www.sweeneylawpa.com/a-look-at-floridas-construction-defects-

statute/

http://www.leg.state.fl.us/statutes/index.cfm?

App_mode=Display_Statute&URL=0500-0599/0558/0558.html

https://www.lexology.com/library/detail.aspx?g=9a905335-7b7c-4d52-

ade8-b03fa0057bf3

https://realestate.findlaw.com/construction-defects/types-of-construction-

defects.html