HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 21 Construction Defects
SPONSOR(S): Regulatory Reform Subcommittee, Andrade and others
TIED BILLS: IDEN./SIM. BILLS: SB 270
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 10 Y, 8 N Mawn Jones
2) Regulatory Reform Subcommittee 9 Y, 8 N, As CS Brackett Anstead
3) Judiciary Committee
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
(“property”), and includes a Florida Building Code violation. A property owner, including a subsequent
purchaser or a community association (“claimant”), may bring a civil action alleging a construction defect claim
against the person responsible for the construction defect (“respondent”) in a court of competent jurisdiction. A
claimant must bring such an action within four years after project completion or, in the case of a latent defect,
within ten years of certain specified events.
HB 21:
Limits actionable violations of the Florida Building Code to material violations.
Changes the statutory standard for a cause of action based on a Florida Building Code violation by
removing the provision that allowed causes of action if the contractor or licensee knew or should have
known of the violation.
Requires a claimant to attempt to resolve a construction defect claim or Florida Building Code violation
claim under an existing applicable warranty before sending a notice of claim or filing legal action.
Provides that a person does not have a cause of action if a warranty provider offers to make repairs to
an alleged construction defect or violation of the Florida Building Code, and the person is satisfied with
the repairs.
Provides that the construction defect notice and cure process provided in current law, does not apply
unless the responding parties agree to opt in to the process.
Increases the specificity of detail a claimant must provide in the notice of claim and requires the
claimant to include photographs of the damage and repair estimates or expert reports.
Requires a claimant to affirm in the notice of claim that he or she has personal knowledge of the
alleged defect and acknowledge that he or she is aware of the penalties for perjury.
Requires a claimant to personally sign the notice of claim under penalty of perjury.
Mandates that the respondent serve a copy of the notice of claim on each person the respondent
believes is responsible for the defect.
Provides that a claimant does not have a cause of action for a construction defect, if the contractor
offers to fix the repairs at no cost to the claimant, and the claimant is satisfied with the repairs.
Provides that submitting a claim to an existing applicable warranty tolls the statute of limitations to bring
a cause of action for a construction defect
Requires a claimant to submit a copy of a notice of claim of an alleged construction to any mortgage
company with a security interest in the property, and notify such company of the claim’s outcome.
The bill may have a positive insignificant fiscal impact on state government. The bill does not have a fiscal
impact on local governments.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0021c.RRS
DATE: 3/9/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Building Code
The Florida Building Code is the statewide building code for all construction in the state. The Florida
Building Commission (Commission), housed within the DBPR, implements the Florida Building Code.
The Commission reviews the International Code Council’s I-Codes and the National Electric Code
every three years to determine if it needs to update the Florida Building Code.1
Part IV of ch. 553, F.S., is known as the “Florida Building Codes Act,” which provides a mechanism for
the uniform adoption, updating, interpretation, and enforcement of a single, unified state building code
that must be applied, administered, and enforced uniformly and consistently from jurisdiction to
jurisdiction.2 The Florida Building Code is adopted, updated, and interpreted by the Commission, and is
enforced by local governments.3
The main purpose of the Florida Building Code is to regulate new construction or proposed
modifications to existing structures in order to give the occupants the highest level of safety and the
least amount of defects.4 The Florida Building Code sets minimum standards for the design,
construction, erection, alteration, modification, repair, and demolition of buildings, structures, and
facilities in the state.
Construction and Electrical Contractors
The Legislature has determined that it is “necessary in the interest of the public health, safety, and
welfare” to regulate the construction, electrical, and alarm system industry.5
Construction contractors are either certified by or registered with the Construction Industry Licensing
Board (CILB). The CILB is housed in DBPR and consists of 18 members who are appointed by the
Governor and confirmed by the Senate. The CILB is responsible for licensing, regulating, and
disciplining certified construction contractors. Electrical contractors and alarm system contractors are
certified by or registered with the Electrical Contractors’ Licensing Board (ECLB). The ECLB is also
housed in DBPR consists of 11 members who are appointed by the Governor and confirmed by the
Senate. The ECLB is responsible for licensing, regulating, and disciplining certified electrical and alarm
system contractors.6
The CILB and the ECLB may take action7 against a certified contractor if they find the contractor is
guilty of violating the contractor’s practice act. Violations include:8
Abandoning a construction project;
Committing financial mismanagement that causes financial harm to a customer;
1 S. 553.73(7), F.S.
2 See s. 553.72(1), F.S.
3 Ss. 553.72, & 553.73, F.S.
4 Florida Building Commission, 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 Feb. 9, 2021).
5
s. 489.101, F.S.
6
See generally Ch. 489, F.S.
7
The CILB and the ECLB may place a contractor on probation, reprimand him or her, revoke or suspend the contractor’s certificate or
registration, or deny the issuance of a renewal certificate or registration. The CILB and the ECLB may also require financial
restitution to a consumer for financial harm directly related to a violation, require continuing education, or assess costs associated with
investigation and prosecution. Ss. 489.129(1), 489.533(1), F.S.
8
Ss. 455.227(1)(k), 489.129(1)(o), and 489.533(1), F.S.
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DATE: 3/9/2021
Failing to perform any statutory or legal obligation placed upon a licensee;
Falsely indicating that payment has been made for all subcontracted work, labor, and materials
which results in a financial loss to the owner, purchaser, or contractor;
Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of
adjudication, a crime in any jurisdiction which directly relates to the practice of contracting or the
ability to practice contracting; or
Proceeding on a job without obtaining applicable local building department permits and
inspections.
In addition to the CILB or ECLB disciplining a contractor, any licensee responsible for a material Florida
Building Code violation who failed to correct the violation within a reasonable time may be fined by a
local jurisdiction at least $500 but no more than $5,000. A failure to pay the fine will result in a
suspension of the licensee’s ability to pull building permits.9
A “material violation” is a violation existing within a completed building, structure, or facility which may
reasonably result, or has resulted, in physical harm to a person or significant damage to the
performance of a building or its systems.10
New Home Warranties
New home warranties guarantee the repair or replacement of certain elements of a newly-constructed
home, if necessary, within a specified time. Builders often back new home warranties; however,
builders sometimes purchase warranties from independent companies that assume responsibility for
the claims, and homeowners may purchase additional coverage from third-party warranty companies.11
The duration of coverage offered under a new home warranty varies based on the type of element at
issue. Most new home warranties cover workmanship and materials, such as drywall and paint, for one
year after construction.12 Coverage for elements such as air conditioning, plumbing, and electricity
typically lasts for two years, and some new home warranties cover major structural defects making a
home unsafe for up to ten years.13 However, new home warranties typically do not cover expenses a
homeowner incurs due to a construction defect or repair, such as temporary relocation costs, or
superficial defects, such as small cracks in tile or cement.14
Generally, a new home warranty contract specifies how a claim must be made under the warranty.
Many new home warranties require mediation15 of disputed warranty claims, followed by mandatory
binding arbitration16 if mediation is unsuccessful.17
Statutory Civil Actions – Current Situation
Any person damaged by a Florida Building Code violation has a civil cause of action against the
culpable party.18
There is no cause of action against a party who did not know and had no reason to know of the
violation if:
9 S. 553.781, F.S.
10 Id.
11 Federal Trade Commission (“FTC”), Warranties for Newly Built Homes, https://www.consumer.ftc.gov/articles/0186-warranties-newly-
built-homes (last visited Feb. 9, 2021).
12 Id.
13 Id.
14 Id.
15 Mediation is a process whereby a neutral third person helps the parties discuss and try to voluntarily resolve their dispute.
16 Mandatory binding arbitration is a process whereby parties to a contract agree to submit their disputes to a third party instead of to
the courts, and there are no appellate rights.
17 FTC, supra note 11.
18 S. 553.84, F.S.
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DATE: 3/9/2021
The party obtained the required building permit;
The party receive government approval of the plans;
The construction project passed all required inspections; and
There was no personal injury or damage to other property.19
However, this does not apply if the culpable party knew or should have known that the violation
existed.20
Statutory Civil Actions – Effect of the Bill
The bill limits a statutory civil action, pursuant to s. 553.84, F.S., based on a violation of ch. 553, F.S.,
or the Florida Building Code to only allow suits based on “material” violations. The bill defines "material
violation" means a violation that exists within a completed building, structure, or facility which may
reasonably result, or has resulted, in physical harm to a person or significant damage to the
performance of a building or a system.
The bill changes the statutory standard for a cause of action based on a violation of ch. 553, F.S., or a
the Florida Building Code violation by removing the provision that allowed causes of action if the
contractor or licensee knew or should have known of the violation.
The bill provides that a person has a statutory cause of action based on a violation of ch. 553, F.S., or
the Florida Building Code, if the violation resulted in significant damage to the permitted property
or may reasonably result in personal injury or significant damage to the performance of a
building or its system, regardless if the culpable party obtained the required building permit, received
government approval of the plans, construction project passed all required inspections, and there was
no personal injury or damage to other property.
The bill requires that before filing a cause of action based on a material violation of ch. 553, F.S., or the
Florida Building Code, a person must submit a written claim for the alleged material violation under any
existing applicable warranty. A person must provide access to the property for an inspection within 30
days of serving a claim. If the warranty provider offers to repair the alleged material violation, the
person has 30 days to provide written authorization approving the repairs. A warranty provider has 120
days from the inspection to complete the repairs or offer a remedy.
The bill provides that a person may bring a cause of action if the warranty provider denies the claim,
does not complete the repair, or offers a remedy that is unsatisfactory to the person who submitted the
claim. However, a person is barred from bringing a cause of action, if the warranty provider offers to
repair the alleged violation and the person fails to provide written authorization approving repairs.
The bill also provides that any offer or failure to offer a repair of an alleged material violation or to
compromise and settle a claim by monetary payment or other remedy does not constitute an admission
of liability and is not admissible in an action based on a material violation of ch. 553, F.S., or the Florida
Building Code.
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 property21 (“property”) resulting from:
Defective material, products, or components used in the 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
19 Id.
20 Id.
21 “Real property” means land that is improved and the improvements thereon, including fixtures, manufactured housing, or mobile
homes. S. 558.002(8), F.S.
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A failure to construct or remodel real property in accordance with accepted trade standards for
good and workmanlike construction at the time of construction.22
A property owner, including a subsequent purchaser or a community association23 (“claimant”), may
bring a civil action alleging a construction defect claim against the contractor, subcontractor, supplier, or
design professional24 responsible for the construction defect (“respondent”) in a court of competent
jurisdiction.25
A claimant must bring an action alleging a construction defect within four years of the later of:
Actual possession by the owner;
The issuance of a certificate of occupancy;
Abandonment of construction if not completed; or
Completion or termination of the contract between the professional engineer, registered
architect, or licensed contractor and his or her employer.26
In the case of a latent defect,27 a claimant must bring such action within four years of the defect being
discovered or should have been discovered with the exercise of due diligence.28 In no circumstances
may an action be brought 10 years after the later of:
Actual possession by the owner;
The issuance of a certificate of occupancy;
Abandonment of construction if not completed; or
Completion or termination of the contract between the professional engineer, registered
architect, or licensed contractor and his or her employer.29
Notice of Claim – Current Situation
Chapter 558, F.S., requires a claimant to serve a written notice of claim on the respondent at least 60
days before bringing a construction defect claim in court, or at least 120 days before bringing such
claim if it involves an association representing more than 20 parcels. The notice of claim must describe
in reasonable detail the alleged defect’s nature and, if known, the damage or loss caused by the
defect.30 The notice of claim must also identify the alleged defect’s location with enough detail to