You Snooze, You Lose: The Statute of Limitations for Construction Defect Claims in Florida
Alan P. Gustafson
April 20, 2012
Most people have probably heard of the adage: “if you snooze, you lose.” Similarly, if an association snoozes or sits on its right to sue, it may be barred from bringing a lawsuit. This is commonly known as the “statute of limitations.”
The Florida legislature has adopted statutes of limitation, most of which are found in Chapter 95, Florida Statutes, that set time frames within which a party must bring a lawsuit. If a party does not file a lawsuit within the required time frame, the claim will be barred. Therefore, when an association discovers a construction defect, one of the first questions the association may have is: did the association discover the problem too late?
In Florida, a lawsuit based on construction defects must be brought within four years of 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 construction is not completed), or the date of completion or termination of the contract between the association and an engineer, architect, or contractor (whichever date is latest). When an action involves a latent defect, however, the time begins to run from the time the defect is discovered or should reasonably have been discovered. In no event may a lawsuit be brought after 10 years. This 10 year limitation period is known as the “statute of repose.”
For example, in some cases an association is aware of a construction defect at the time the project is completed. Assume a condominium association hires a contractor to replace windows, but the contractor installs the windows upside down. In this example, because the defect is obvious and the association knows (and certainly should know) about the defect, the association has four years from the date the windows are installed to file a lawsuit.
Most of the time, an association discovers construction defects long after the project has been completed. For example, assume that an association hires a contractor to replace the association’s roof. Two years after the roof is completed, a rainstorm strikes the area. Shortly after the rainstorm, the association receives complaints from an owner that the roof is leaking. Because the defect to the roof is a latent, or hidden defect, which the association did not and reasonably could not discover at the time the roof was completed, the association has four years from the time the roof began leaking to file a lawsuit. It is important to emphasize that the statute of limitations for latent defects begins to run when the damage is discovered. Therefore, if an association is aware of damages, but does not know the exact cause, it has the duty to investigate the cause of the problem.
Please keep in mind, however, that in the above example if the association does not discover the defective roof until eleven years after the roof is completed, the claim would be barred by the ten year statute of repose.
Since the statute of limitations and statute of repose act as a complete bar to recovery, it is important for associations to be on the lookout for potential defects, and to quickly take action to protect their legal rights once symptoms of a defect are discovered.