HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/CS/HB 85 Causes of Action Based on Improvements to Real Property
SPONSOR(S): Judiciary Committee, Regulatory Reform & Economic Development Subcommittee, Civil
Justice Subcommittee, Snyder
TIED BILLS: IDEN./SIM. BILLS: SB 360
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 15 Y, 3 N, As CS Mawn Jones
2) Regulatory Reform & Economic Development 14 Y, 1 N, As CS Wright Anstead
Subcommittee
3) Judiciary Committee 22 Y, 0 N, As CS Mawn Kramer
SUMMARY ANALYSIS
A “construction defect” is a deficiency in, or arising out of, the design, specifications, surveying, planning,
supervision, or observation of construction, or the construction, repair, alteration, or remodeling of real
property, and includes a Florida Building Code (“Building Code”) violation. Causes of action which may be
available for a construction defect claim include breach of contract or warranty, fraud, negligence, and a
statutory cause of action under s. 553.84, F.S., for Building Code violations.
Section 95.11(3)(c), F.S., establishes the time periods within which a construction defect cause of action must
be brought. Specifically, for a patent (that is, obvious or known) defect, an action must generally be filed within
four years from the date of the later of the:
Owner’s actual possession;
Issuance of a certificate of occupancy;
Construction’s abandonment, if not completed; or
Completion or termination of the engineer’s, architect’s, or contractor’s contract with his or her
employer.
However, for a latent (that is, not easily discoverable) defect, the four-year statute of limitations begins to run
on the date the defect was discovered or should have reasonably been discovered with due diligence. In any
event, the statute of repose in this section provides that in no case may a construction defect claim be filed
more than ten years after the later of any event triggering the statute of limitations for patent defects.
CS/CS/CS/HB 85:
Modifies the time periods within which a construction defect cause of action must be brought by:
o Changing the point from which the four-year statute of limitations begins to run for patent
defects to the date of the earliest of the following events:
Issuance of a temporary certificate of occupancy;
Issuance of a certificate of occupancy;
Issuance of a certificate of completion; or
Construction’s abandonment, if not completed.
o Decreasing the statute of repose from ten years to seven years, generally running from the
earliest of the listed triggering events for the statute of limitations.
o Specifying how to determine the limitations period for each building in a multi-building
improvement and for a single-dwelling residential building used as a model home.
o Giving plaintiffs a set period of time to sue if these changes would otherwise cut off their rights.
Limits the statutory Building Code violation cause of action to a “material” violation.
The bill may have an indeterminate fiscal impact on state government, but does not appear to have a fiscal
impact on local government. The bill provides an effective date of upon becoming a law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0085e.JDC
DATE: 3/16/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Building Code
The Florida Building Codes Act (“Building Code”), set out in part IV of ch. 553, F.S., provides a
mechanism for the uniform adoption, updating, interpretation, and enforcement of a single state building
code that must be applied, administered, and enforced uniformly and consistently across the state.1 The
Building Code is adopted and interpreted by the Florida Building Commission, housed within the
Department of Business and Professional Regulation (“DBPR”), and enforced by local governments.2
The Building Code’s primary purpose is the regulation of new construction and existing structure
modifications to achieve the highest safety level and the fewest construction defects.3 To accomplish
this, the Building Code sets minimum standards for the design, construction, erection, alteration,
modification, repair, and demolition of structures in the state.
Plan Review and Building Permits
Each local government must issue building permits for construction projects within its jurisdiction.4
However, the building official may not issue a building permit before first reviewing the plans and
specifications and finding that such plans and specifications comply with the Building Code. 5 No
person, firm, or corporation may construct, erect, alter, repair, secure, or demolish any structure without
first obtaining a building permit, if required, from the building official.6
Inspections and Violations
For any construction requiring a building permit, the building official7 must inspect the work to ensure
that it complies with the Building Code.8 Where a local government determines that an engineer,
architect, or contractor has committed a “material violation” of the Building Code and failed to correct
the violation within a reasonable time, the local government must impose a fine on such licensee of no
less than $500 and no more than $5,000 per violation. 9 A “material violation,” as the term is used here,
is a violation existing within a completed building, structure, or facility which may result, or has resulted,
in physical harm to a person or significant damage to the performance of a building or its systems. 10
1 S. 553.72(1), F.S.
2 Ss. 125.56, 553.72, 553.73, and 553.74, F.S.
3 Fla. Bldg. Comm., Advanced Florida Building Code Principals, http://www.floridabuilding.org/Upload/Courses_trp/421-2-MATERIAL-
Adv%20FL%20Bldg%20Code%20-%20Course%20PDF%20version%207.0.pdf (last visited March 14, 2023).
4
A building permit is an official document or certificate issued by the local building official that authorizes performance of a specific
construction activity. Ss. 125.01(1)(bb), 125.56(1), 468.603(2), and 553.80(1), F.S.
5 Ss 125.56 and 553.79, F.S.
6 Building permits are generally not required for cosmetic improvements, such as painting or flooring replacement. S. 553.79, F .S.
7 A building official is a local government employee or a person contra cted with a government entity who supervises building code
activities. Id.
8 Id.
9 S. 553.781, F.S.
10 Id.
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Certificates of Completion or Occupancy
The building official issues a certificate of completion where an existing building or structure is
renovated or remodeled without a change in its occupancy or use, or when a shell building11 is newly
constructed, and such work passes its final building inspection. 12 Where a new structure to be
occupied13 passes its final building inspection, the building official issues a certificate of occupancy.14 A
building or structure requiring a certificate of completion or occupancy generally may not be used or
occupied until the appropriate certificate is issued; however, the building official may issue a temporary
certificate of completion or occupancy before the project’s close if a portion of the building or structure
may be safely used or occupied.15 The temporary certificate grants the applicant the same rights as a
certificate of completion or occupancy but expires after a set time period unless the building official
grants an extension.16 A building official may also suspend or revoke a temporary or final certificate of
occupancy or completion if the certificate was issued in error or on the basis of incorrect information or
where it is determined that the building or structure is in violation of any ordinance, regulation, or
Building Code provision.17
Statutes of Limitations and Repose
A statute of limitations bars a lawsuit’s filing after a certain amount of time elapses following an injury.18
This time period typically begins to run when a cause of action accrues (that is, on the date of the
injury), but may also begin to run on the date the injury is discovered or on which it would have been
discovered with reasonable efforts.19 In other words, a statute of limitations bars the available civil
remedy if a lawsuit is not timely filed after an injury.
A statute of repose bars the filing of a lawsuit after a fixed period of time passes following a specific act,
which act is unrelated to the cause of action’s accrual or the injury’s discovery, even if this period ends
before the plaintiff is injured.20 Further, a statute of repose eliminates the underlying substantive right of
action, not just the available civil remedy, upon expiration of the statutorily-specified filing period.21
Courts construe a cause of action rescinded by a statute of repose as if the right to sue never existed,
which encourages diligence in the prosecution of claims, eliminates the potential for abuse resulting
from a stale claim, and fosters finality in liability.22
11
A shell building separates a structure’s interior space from its exterior and generally consists of the foundation, outer walls, roofing,
windows, and exterior doors . When a shell building is constructed, the developer leaves the structure’s interior unfinished so that the
purchaser or tenant may contract with other construction professionals to customize its elements (including flooring, ceilings, interior
walls, interior doors, and electrical fittings). Nassau County Building/Code Enforcement Department, Guidelines for Shell Building and
Tenant Build-Out Permits, https://www.nassaucountyfl.com/DocumentCenter/View/13984/Guidelines-for-Shell-Building-and-Tenant-
Build-Out-Permits?bidId (last visited March 14, 2023).
12
Passage of a final building inspection would include obtaining approvals for all permits issued for the project (such as building and fire
permits and sub-permits such as electrical, mechanical, elevator, plumbing, and roof permits). S. 553.79(17)(a), F.S.; S. 110, Fla. Bldg.
Code, 7th Ed. (2020).
13 This includes an existing building or structure for which the occupancy classification is changing.
14 S. 111, Fla. Bldg. Code, 7th Ed. (2020).
15
Typically, the building official also requires that any outstanding work be nearing completion before issuing a temporary certificate.
See, example, City of Tampa, Apply for a Temporary Certificate of Occupancy, https://www.tampa.gov/document/apply-temporary-
certificate-occupancy-tco-35571 (last visited March 14, 2023)(requiring an applicant for a temporary certificate of occupancy to affirm
that construction will be complete within 90 days ); Id.
16 S. 111, Fla. Bldg. Code, 7th Ed. (2020).
17 Id.
18 Legal Information Institute, Statute of Limitations, https://www.law.cornell.edu/wex/statute_of_limitations (last visited March 14, 2023).
19 Id.
20 Legal Information Institute, Statute of Repose, https://www.law.cornell.edu/wex/statute_of_repose (last visited March 14, 2023); Kush
v. Lloyd, 616 So. 2d 415 (Fla. 1992).
21 Beach v. Great Western Bank , 692 So. 2d 146 (Fla. 1997).
22 Lamb By and Through Donaldson v. Volkswagenwerk Aktiengesellschaft, 631 F. Supp. 1144, 1148 (S.D. Fla. 1986), judgment aff'd,
835 F.2d 1369 (11th Cir. 1988).
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Construction Defect Claims
A “construction defect” is a deficiency in, or arising out of, the design, specifications, surveying,
planning, supervision, or observation of construction, or the construction, repair, alteration, or
remodeling of real property23 resulting from:
Defective material, products, or components used in construction or remodeling;
A Florida Building Code violation;
A failure of real property’s design to meet the applicable professional standards of care at the
time of governmental approval; or
A failure to construct or remodel real property in accordance with accepted trade standards for
good and workmanlike construction in place at the time of construction.24
Available Causes of Action
Causes of action which may be available for a construction defect claim include breach of warranty, 25
breach of contract26 (if the parties are in privity27), fraud, and negligence.28 Florida law also provides a
statutory cause of action in s. 553.84, F.S., for Building Code violations. Specifically, this section
provides that any person damaged as a result of a Building Code violation has a cause of action
against the person responsible. However, unless the person responsible knew or should have known of
the violation, there is no cause of action if:
The person responsible obtains the required building permits and any local government or
public agency with Building Code enforcement authority approves the plans;
The construction project passes all required inspections; and
There is no personal injury or damage to property other than the property that is the subject of
the permits, plans, and inspections.
In order to bring a cause of action based on a construction defect claim, a property owner must first
satisfy pre-suit requirements set out in ch. 558, F.S., unless the property owner and the person to be
sued have opted out of ch. 558 in writing.29 These statutory pre-suit requirements include providing the
person to be sued with notice of the claim and opportunities to inspect the alleged defect and make a
settlement offer, which may include monetary payments or an offer to repair the defect. 30
23 “Real property” means land that is improved and the improvements thereon, including fixtures, manufactured housing, or mobile
homes. S. 558.002(8), F.S.
24
S. 558.002(5), F.S.
25 Warranties may be expressly provided by the developer or contractor or implied in common law or statute.
26 A contract forms when an offer is made and the offered terms are accepted. Where one party to a contract fails to perform his or her
duties under the contract, a breach of contract claim arises. Awardable damages are generally limited to those damages specif ied in
the contract; in other words, punitive damages (that is, damages awarded above the actual damages to punish the person responsible)
are generally unavailable. Suarez Trucking FL Corp. v. Souders, 350 So. 3d 38 (Fla. 2022); Lewis v. Guthartz , 428 So. 2d 222 (Fla.
1982).
27 Parties are in privity when they are in direct contract with one another. Legal Information Institute, Privity,
https://www.law.cornell.edu/wex/privity (last visited March 14, 2023).
28 Negligence is a tort. To prevail in a negligence action, the plaintiff must prove that the defendant owed him or her a duty, the
defendant breached the duty, and the plaintiff suffered damages proximately caused by the breach. However, a negligence claim does
not exist where the defendant only breached a duty owed under a contract; in such case, the plaintiff would have to prove that the
defendant breached a non-contractual duty owed to the plaintiff, such as a statutory or common law duty. U.S. v. Stephens, 994 So. 2d
1062 (Fla. 2008); Monroe v. Sarasota County Sch. Bd., 746 So. 2d 530 (Fla. 2d DCA 1999); Goldb erg v. Fla. Power & Light Co., 899
So. 2d 1105 (Fla. 2005).
29 Parties who opt out of chapter 558 may contractually negotiate a mandatory alternative dispute resolution process or other pre-suit
requirements. S. 558.005(1), F.S.
30 Ss. 558.003 and 558.004, F.S.
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Applicable Statutes of Limitations and Repose
Section 95.11(3)(c), F.S., establishes the time periods within which a construction defect cause of
action must be brought. Specifically, for a patent defect,31 an action must generally be filed within four
years from the date of the later of the:
Owner’s actual possession;
Issuance of a certificate of occupancy;
Construction’s abandonment, if not completed; or
Completion or termination of the engineer’s, architect’s, or contractor’s contract with his or her
employer.32
However, for a latent defect,33 the four-year statute of limitations begins to run on the date the defect
was discovered or should have reasonably been discovered with due diligence. In any event, the
statute of repose in this section provides that in no case may a construction defect claim be filed more
than ten years after the later of any event triggering the statute of limitations for patent defects. In other
words, a construction defect claim is time-barred after ten years from the later of any of the events
listed above even where the defect is not yet discovered or could not reasonably have been discovered
with the exercise of due diligence.
Multi-Dwelling Buildings
The Building Code defines “dwelling” as any bu