Construction defects are infamous here in Florida — particularly as a result of the building frenzy a few years back when the Florida construction industry enjoyed a heyday. Back then, there were some unscrupulous builders who thought it was good business to cut corners and maximize profits. Today, those builders are finding out that the real estate they built was full of construction defects due to claims filed by home buyers and condo owners.
The Nightmare of Florida’s Willowbrook Condos
Even today, construction defects hit new homes built by well-known builders. Take the recent example where builder KB Home is dealing with lots of unhappy Floridians who have seen their balconies fall off their stucco homes, among other things, (stucco is hitting against roof lines of neighboring properties). After making a deal with the condo owners and their condo association, KB has sued lots (41) of subcontractors over this problem and other construction issues.
What was going on? The owners of units at Willowbrook Condominiums have reportedly experienced water coming into their homes from their balconies, which in turn resulted in damage to floors, subfloors, walls, carpeting, and more but also encouraged the growth of mold. (It’s Florida, remember.)
County inspectors actually declared over 24 of the condos unsafe for humans, and the Manatee County Public Health representatives have recommended that those who have lived in the Willowbrook community take the time to get medical attention for possible physical illness resulting from all these construction problems.
The big lawsuit regarding Willowbrook will be between the builder and its subs, though. KB Home entered into an agreement to make repairs for the home owners, honoring its builder’s warranties.
In a rather unique turn of events, a federal lawsuit was recently filed by KB Home against certain Willowbrook residents. Filed in federal court, KB Home has sued Willowbrook owners who protested KB’s actions because the owners, among other things, put up a web site that the lawsuit now requests be taken offline (removed from the internet).
Construction Defect Claims by Florida Condo Owners
The KB Home/ Willowbrook Condos situation isn’t the usual way things happen in construction defect lawsuits. Construction defect claims are more commonly referenced in a conflict between the property owner and the general contractor (builder).
Chapter 558 of the Florida Statutes provides for construction defect claims and lawsuits, and gives specific procedures and requirements that have to be followed for the lawsuit to be valid (and not tossed out on the defendant contractor’s motion by a trial court judge).
The Florida Legislature provides its reasoning for legalizing certain hurdles for home owners in Florida Statute 558.001, where the lawmakers explain:
The Legislature finds that it is beneficial to have an alternative method to resolve construction disputes that would reduce the need for litigation as well as protect the rights of property owners. An effective alternative dispute resolution mechanism in certain construction defect matters should involve the claimant filing a notice of claim with the contractor, subcontractor, supplier, or design professional that the claimant asserts is responsible for the defect, and should provide the contractor, subcontractor, supplier, or design professional with an opportunity to resolve the claim without resort to further legal process.
What does this mean? It boils down to this: Florida home owners with construction defects have to follow the provisions here, in Chapter 558, and they cannot simply sue the contractor like they might be able to do in another soured business transaction.
Under Florida Statute 558.004, for example, specific requirements are set out for how the property owner is to NOTIFY the contractor (or supplier or architect) about the problem and its need for repair.
Under this notice requirement, a written notice must be served at least 60 days before any formal lawsuit can be filed based upon the construction defect. (It’s 120 days if the notice is being given by an association representing more than 20 parcels.)
That’s not all. The notice has to meet certain substantive requirements under Florida Statute 558.004, as well. The notice must describe the problem in “… reasonable detail sufficient to determine the general nature of each alleged construction defect and a description of the damage or loss resulting from the defect, if known.”
It goes on. The home owner cannot procrastinate.
“The claimant shall endeavor to serve the notice of claim within 15 days after discovery of an alleged defect, but the failure to serve notice of claim within 15 days does not bar the filing of an action, subject to s. 558.003. ….”
Larry Tolchinsky’s Tip:
Construction defect claims in Florida can be messy complicated real estate lawsuits. When home owners are fighting with the contractor over a defect while living in the property, then things can become very emotional and frustrating.
One good thing?
The Florida Legislature has made it the law that the Florida home owner will know within about 6 weeks time after sending that formal notice what the contractor’s position is going to be on things. Are they going to jump up and fix it? Are they calling their insurance carrier? Are they denying anything is wrong?
If there has to be a lawsuit filed based upon construction defects, it is good to know as soon as you can what you’re going to be facing in court— or, on the other hand, that you have a builder ready and willing to honor warranties and make repairs.
Construction defects are never easy cases, but not every Florida construction defect claim will be the horror that the Willowbrook Condo case has been for everyone concerned.
Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at firstname.lastname@example.org, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.