Q: Can you please explain the process for making a construction defect claim for a condominium in Florida?
A: The first thing that needs to happen is that your Association should speak to its attorneys to make certain that the proper process is followed. There are many pitfalls and issues that can arise during the process, and you do not want to damage or potentially waive any claims that you may have. While Florida Statutes require developers at turnover to provide a written inspection report, those reports are generally so limited in scope and detail so as to be useless to an Association. So, as an Association, it is incumbent upon the Board to work with its counsel to find a qualified engineering firm to perform a top to bottom exhaustive evaluation of the property. The report generated by your own engineer will provide an analysis of all components of the building and analyze whether the condominium was constructed in compliance with the plans and specifications, the Florida Building Code, as well as with good construction and/or engineering practices. Keep in mind that what most people think of as experts are not necessarily what is needed in these types of circumstances. Specifically, “experts” in this context are people who have the training, education, and experience to give testimony in court as to the cause of a defect.
Florida Statutes Chapter 558 governs what happens in a construct defect matter. There are certain requirements that must be complied with before you can file a lawsuit to recover damages related to construction defects. If a lawsuit is filed without first complying with the 558, the Court will stay (or delay) the action until the requirements of the statute are met. The way this works that before bringing a lawsuit (or an “action”) for construction defects, you must first serve a written Notice of Claim on the party allegedly liable for the construction defects. Generally speaking, this would be the developer, the general contractor, the architect, the engineers and any other subcontractors who worked on the project. Chapter 558 defines “Construction Defects” as a deficiency in, or arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property resulting from: (a) defective materials, products, or components used in the construction; (b) a violation of the applicable codes in effect at the time of construction; (c) a failure of the design of real property to meet the applicable professional standards of care at the time of governmental approval; or (d) a failure to construct or remodel real property in accordance with accepted trade standards for good and workmanlike construction at the time of construction.
This is where the engineering report comes into play. The report should have detailed the engineer’s findings in regard to items such as the roof, the facade, structural features of the building, and electrical, mechanical, and plumbing components of the condominium. The engineer’s report should describe with as much detail as possible each defect and whether the defective condition is a result of any of Building Code violations, deviations from plans and specifications, poor workmanship, life-safety issues and any issues related to lack of maintenance prior to turnover. The report should also, at least generally, lay out the methods and cost of repairing or replacing each defective condition. This is important as the Notice of Claim must describe each alleged construction defect in reasonable detail, sufficient for the recipient of the Notice of Claim to determine the general nature of each alleged defect. After that, the recipient of the Notice of Claim is entitled to reasonable access to the property to perform an inspection of the property in order to determine the nature and cause of each alleged construction defect and to determine the extent of any repairs or replacements necessary to remedy each defect. Under the Statute, a written response from the recipient of the Notice must provide either: (a) a written offer to remedy the alleged construction defect at no cost to the claimant; (b) a written offer to settle the claim by monetary payment; (c) a written offer to settle the claim by a combination of repairs and monetary payment; (d) a written statement that the person disputes the claim and will not remedy the defect or settle the claim; or (e) a written statement that a monetary payment, including insurance proceeds, if any, will be determined by the person’s insurer within 30 days after notification to the insurer, which the Claimant may accept or reject. There are multiple time requirements and limits for all of these things to take place and your attorney can walk you through the process. Although it does not happen often, Chapter 558 does provide an opportunity to try to resolve a claim before a lawsuit is filed. Also, keep in mind that, as with any settlement discussions, any offers made pursuant to the statute are not admissible in any legal actions later.
It is vital that you speak to an attorney who has experience in construction defect cases to evaluate all available options. Keep in mind that these types of cases expensive to litigate and they can go on for several years before resolution. Your attorney should be able to provide you with guidance on the costs of pursuing your claims and what can be expected during the lawsuit process.
Harris B. Katz, Esq., is Managing Partner, Boca Raton of the Law Firm Goede, DeBoest & Cross, PLLC. To ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
