Defective contractor work in Florida? The Chapter 558 notice

When Chapter 558 applies

Section 558.005 says the chapter applies to claims about construction defects that arise after completion of a building or improvement, where the agreement to make the improvement was made after October 1, 2009, unless the owner and the contractor agreed in writing to opt out. Completion generally means the issuance of a certificate of occupancy, temporary or otherwise, or an equivalent authorization; where none is issued, it means substantial completion.

The chapter defines a construction defect as a deficiency in the design, specifications, supervision or construction, repair, alteration or remodeling of real property that results from defective materials or products, a code violation that gives rise to a claim under section 553.84, a design that fails professional standards, or a failure to build or remodel in line with accepted trade standards for good and workmanlike construction (section 558.002). The process covers lawsuits and arbitration over property damage, not claims for personal injury.

The notice of claim

Under section 558.004, you must serve a written notice of claim at least 60 days before filing an action (120 days for an association representing more than 20 parcels), and the notice must refer to Chapter 558. If the work was done under a contract, serve it on the person you contracted with.

The notice must describe each alleged defect in reasonable detail and, if known, the damage it caused, and, based on at least a visual inspection, identify where each defect is so the other side can find it. You do not have to do destructive testing for the notice. The law asks you to try to serve it within 15 days after you discover a defect, though missing that does not by itself bar a lawsuit. Serving the notice does not pause the statute of repose.

Inspection, response and your answer

Within 30 days after the notice is served, the contractor is entitled to a reasonable inspection, and you must give it and its agents reasonable access during normal working hours. Destructive testing happens only by agreement, after written notice describing the testing, who will do it, the expected damage and repairs, and who pays. If you refuse reasonable destructive testing, you cannot claim damages that could have been avoided had the testing been allowed and a feasible fix promptly made.

Within 45 days after the notice is served, the contractor must give you a written response. It must be one of these: an offer to fix the defect at no cost to you, with a detailed description of the repairs and a timetable; an offer to settle with money; an offer combining repairs and money; a statement that it disputes the claim; or a statement that its insurer will decide on a payment within 30 days.

If the contractor disputes the claim or does not respond in time, you may go ahead with an action without further notice. If you receive a timely offer, you must accept or reject it in writing within 45 days; if you sue first, the court will pause the case on request until you do. If you accept an offer to repair, you must give reasonable access to do the work. If the contractor does not pay or repair as agreed, apart from reasonable delays such as weather, materials, your own actions or permits, you may proceed; if it does, the claim in the notice is settled.

Time limits

Under section 95.11(3)(b), an action based on the design, planning or construction of an improvement to real property must be brought within four years. The time runs from the earliest of the date the building department issues a temporary certificate of occupancy, a certificate of occupancy or a certificate of completion, or the date construction was abandoned. For a latent defect, it runs from when the defect was discovered or should have been discovered with due diligence.

In any event, the action must be brought within 7 years after that certificate date, or abandonment if earlier. For permitted work that received a certificate, repairs to completed work, including warranty repairs, do not extend that time. Because the deadlines are strict, talk to a Florida construction attorney early.

Protect yourself before you sign

The easiest defect claim to make is one backed by paper. Keep the signed contract and estimate, the permit, the final inspection or certificate of completion, and photos of the work. Get warranties in writing, with what they cover and for how long, and keep payment records and lien releases together.

A clear written scope is what lets you show a defect: materials named by product, quantities stated, and work described plainly enough that someone else can check it. Check the contractor's license before you sign; Florida law treats contracts by unlicensed contractors differently, as our guide to handymen and licensed contractors explains.