Chapter 558 May Not Apply To All Construction Defect Claims
The recent change to §558.005 of the Florida Statutes appears to make that statutory code requiring pre-litigation notice and opportunity to cure applicable to all claims for construction defects when the construction contract was executed October 1, 2009 or later unless the claimant and the potential defendant have agreed in writing to opt out of the requirements of that code. This statutory change suggests that, unless a contract waives the provisions of Chapter 558, the notice and opportunity to cure provisions apply to all construction defect claims arising out of contracts dated October 1, 2009 or later. However, a closer examination reveals that may not be the case. In particular, it does not appear Chapter 558 applies to construction defect claims a developer may bring against its contractor and subcontractors.
Chapter 558 requires a series of notices, inspections, and opportunities to cure construction defects before a “claimant” may sue for defects. The definition section of Chapter 558 defines “claimant” as a property owner asserting a claim for damages arising from construction defects. However, the definition provides that “claimant” does not include a “contractor.” The statute goes on to define “contractor” as including any person legally engaged in the business of developing real property. Therefore, a glitch in the statute appears to completely exempt developers from the provisions of Chapter 558 and all the pre-suit notice requirements when they are the Claimant. Certainly, this is happy news for developers who may wish to avoid the onerous pre-litigation procedures unless they choose to voluntarily submit to them. On the other hand, contractors contracting with developers should ensure their contracts require compliance with Chapter 558 as a contractual term and require abatement of any litigation that may be brought before the statutory provisions are satisfied. This way, even though the statute may not technically apply, incorporating the statute into one’s contract could make non-compliance with the statute a breach of contract or failure of condition precedent should the developer sue for defects before satisfying the statutory requirements. While you are considering whether to add this clause to your construction contracts, think about all the other construction statutes for which you should craft contractual provisions compelling compliance, or waiving compliance, as your situation dictates.