Florida Legislature reviewing statutes of limitation and repose, with different categories for different types of construction

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Statute of limitations by Nick Youngson CC BY-SA 3.0 Pix4free
Statute of limitations by Nick Youngson CC BY-SA 3.0 Pix4free

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A new bill has been proposed in the Florida Legislature that would amend the statutes of limitations and repose, greatly impacting construction defect litigation.

“The original bill proposed to rewrite Fla. Stat. 95.11(3)(c) by completely eliminating the 10-year statute of repose for latent defects, instead requiring all actions founded on the design, planning, or construction of an improvement to real property to be filed within four years,” Elizabeth B. Ferguson, a lawyer with Taylor A. Naughton, writes in a Jan. 11 posting.

“The proposed four-year time period would begin from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest. ”

However, she writes that the Committee on Community Affairs has since the introduction of the original proposal, “proposed a complete overhaul of 95.11, as it relates to construction defect litigation.” A new subsection would added to Fla. Stat. 95.11, subsection 12, titled “ACTIONS RELATING TO AN IMPROVEMENT TO REAL PROPERTY,” laying out out four categories of improvements.

Ferguson writes that these categories are:

  • Category 1 improvements cover detached single-family home, including pre-manufactured homes, or standalone building structures intended for use by a single business, occupant or owner, not exceeding three stories in height and related improvements to such homes, buildings or structures.
  • Category 2 improvements include single-family dwelling units not exceeding three stories in height which are constructed in a series or group of attached units or a commercial or nonresidential building not exceeding three stories in height and related improvements to such dwellings, buildings or structures.
  • Category 3 improvements include commercial or residential buildings or structures of four or more stories in height and related improvements to such buildings or structures.
  • Category 4 improvements is a catchall for any improvement that does not fall under Categories 1-3.

As well, the proposal amends the statute of limitations to read: “An action founded on the design, planning, or construction of an improvement to real property may be commenced within four years after the time to commence an action begins to run.”

The repose period would be shortened to five years after the time for commencing an action begins to run for category 1 improvements; seven years for category 2 improvements; 12 years for category 3 improvements, and 10 years for category 4 improvements.

“The time to commence such an action would begin to run from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is earliest,” Furguson writes.

“The proposed amendment contains a limited one-year extension of time for counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading that the current statute contains. It also maintains that warranty work or correction or repair of defects to completed does not extend the period of time within which an action must be commenced.”

If signed into law, these amendments would apply to any action commenced on or after July 1, regardless of when the cause of action accrued, she writes. “However, any action that would not have been time barred before the amendments may be commenced before July 1, 2023. Any action not commenced by July 1, 2023, that is barred by the amendments is barred.”

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