COMMENCING OF THE STATUTE OF REPOSE FOR CONSTRUCTION DEFECTS

Florida has a ten-year statute of repose which applies predominantly to construction defect claims.   This can be found in Florida Statute s. 95.11(3)(c).  After ten years, any rights relative to a construction defect claim are time-barred.  However, the statute of repose date has been watered down and can be made to be more of a factual question due to the lack of objectivity as to the date that starts the ten-year repose clock.  The watering down of the statute of repose date benefits parties asserting construction defect claims provided they strategically appreciate the question of fact that can be created when up against the statute of repose. Stated differently, when up against the clock to assert a construction defect claim, strategically develop those facts, evidence, and arguments to maximize creating a question of fact as to when the statute of repose clock commenced. Conversely, as a defendant sued for construction defects, you want to maximize the facts, evidence, and arguments to fully establish the date the statute of repose clock had to commence for purposes of a statute of repose defense.

The recent opinion in Spring Isle Community Association, Inc. v. Herme Enterprises, Inc., 46 Fla. L. Weekly D2306b (Fla. 5th DCA 2021) demonstrates the factual question associated with the clock that starts the statute of repose date.  This factual question is created by Florida Statute s. 95.11(3)(c) that provides:

[T]he action [founded on the design, planning, or construction of an improvement to real property] must be commenced within 10 years after 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 or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

Spring Isle Community Association, supra.  (Note, see also current s. 95.11(3)(c) version in effect per hyperlink above.)

Thus, the statute of repose must commence AFTER: (1) after the date of actual possession by the owner, (2) the date of the issuance of the certificate of occupancy, (3) the date of abandonment of construction if not completed, or (4) the date of completion or termination of the contract, WHICHEVER DATE IS LATEST.  This foster the factual argument — which is the latest date and the facts supporting the latest date.

In this case, an association of a townhome community sued a homebuilder for construction defects.  The homebuilder third-partied in implicated subcontractors.  The homebuilder had a master contract with subcontractors and would issue applicable work orders to the subcontractors, which is a common practice with homebuilders. The stucco subcontractor moved for summary judgment based on the ten-year statute of repose arguing that the statute of repose period started when each townhome was issued a certificate of occupancy.  This was based on this date occurring AFTER the homebuilders’ records reflecting it made payment to the stucco subcontractor after the stucco work was complete on a townhome building but prior to the certificate of occupancy on each townhome building.  The trial court agreed and granted summary judgment as to the homebuilder’s third-party claim against the subcontractor.  The homebuilder appealed arguing that the statute of repose period started when their contract was completed which occurred after the certificate of occupancy date.  The appellate court found this was a question of fact and reversed summary judgment:

Additionally, the fact that [the homebuilder] may have made payments to [the stucco subcontractor] after completion of each unit does not establish that the payment constituted “final payment”…. Quite simply, the summary judgment evidence presented below was insufficient, as a matter of law, to determine the number of contracts that may have existed between [the homebuilder] and [stucco subcontractor] or to determine the completion date of the contract(s).

In the absence of competent evidence as to the date of occurrence for each of the four triggering events set forth in section 95.11(c)(3), or evidence that one or more statutory events is inapplicable, there is no way to determine which event occurred last.  Therefore, without sufficient evidence to determine the contract completion date, a genuine issue of material fact remains as to the commencement date of the repose period. Accordingly, we conclude that the trial court erred in granting [the stucco subcontractor’s] motion for partial final summary judgment.

Spiring Isle Community Association, supra (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

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