New Home Construction Defects in Florida: Your Rights Against the Builder

Found defects in your recently built Florida home? Here's what to do.

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If you are the purchaser of a newly built home in Florida, the law gives you a number of remedies to deal with any defects you find that were caused by the builder or sloppy workmanship. When you buy a property directly from a builder or contractor, you have the right to expect that your new home is fit to live in, everything works as it should, and that your home is of the same quality as similar properties, even without your having signed a contract with the seller to that effect.

Why Courts Moved Away From the “Buyer-Beware” Rule

Fortunately, we no longer live in the “buyer-beware” era, in which both buyers and sellers were considered to have equal access to facts about a property. Under this previous legal policy, if you bought a property that was full of defects or built on the cheap, that was generally considered your tough luck – and you had little opportunity to demand repairs or payment for damages you suffered.

Florida courts began to understand the injustice resulting from the continued application of the “buyer-beware” policy when it came to new homes. Builders are, after all, in the business of constructing and selling new homes, and so are in a vastly superior position to know about any defects in their products. Courts also recognized that builders are usually far more sophisticated and experienced in real estate transactions than the average purchaser or family.

Builders Must Warrant Against Sloppy Workmanship in New Construction

So Florida, like many other states, decided that buyers of newly constructed homes are entitled to a promise from the builder that the home is habitable and fit for its intended purpose (an implied warranty of fitness, in legal language). (See Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972).)

The house needs to be constructed and everything needs to work in the way that you would reasonably expect. For example, the roof needs to be leak-free, the air conditioning and heating need to work, water needs to come out when you turn on the faucet, and so on.

Home construction is a huge business in Florida. Take a look, for example, at the numerous builder-investors who construct luxury condominium high-rises overlooking the beach. Given the posh environment, you might think that every new home had been crafted to meet the highest standards, but all too often this is not the case. Time is money, and many builders skimp on materials and choose lower quality in order to boost their profit margin.

Builders May Also Be Responsible for the Quality of Construction Surrounding the Home

Florida courts have also declared that implied warranties apply not only to the specific components that make up the home itself, but also, in a condo complex, to any surrounding features and improvements, if they provide “essential services” for the habitability of the homes. (See Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners Association, Inc., No. SC10-2292 (Fla. 2013).)

Check Whether the Builder Provided an Actual Written Warranty

Florida’s required builder warranties apply whether they are included in your purchase contract or not. They are afforded to you by Florida case law – in other words, law created by judges and their written court decisions.

However, for clarity on the specific rights provided by the builder’s warranties – such as how long they apply to the construction and what the builder will be required to fix, if anything – you're best off if you asked the builder or your attorney to provide express, written warranties as part of your purchase contract.

A standard warranty you should look for in your contract documents is a promise that the contractors' work will be defect-free and comply with all contract requirements. Ideally, the builder is not permitted to use materials of a lesser quality than you want, which might later compromise the overall quality of the home. Your warranties should also establish that you have a legal relationship with all contractors providing services on your property, because you need that in order to enforce warranties against them. The law refers to this relationship as “privity;” in other words, being a person who is entitled to the rights and protections of a contract.

Hopefully, you or your attorney made sure that your warranties were drafted carefully to ensure that you will be able to enforce them, as complex disputes can arise even with express warranties. You may think that you have coverage, but courts have created a number of exceptions that excuse builders from providing services under a warranty.

For example, one court excused a subcontractor from fulfilling an express warranty that only materials “of good quality” would be used, because other language in the contract documents required the contractor to use only one kind of brick, which turned out to be defective (See Wood Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So.2d 548 (Fla. 1st DCA 1970).)

In the absence of a written warranty, your rights will need to be determined on a case-by-case basis – and likely by a mediator or court. For example, if there are no passable roads to let you get to and from your residence, and if there is always standing water that attracts mosquitoes and creates a drowning hazard, then these hazards negatively impact the habitability of your home in the eyes of the law, and a court is likely to rule in your favor in a lawsuit against the builder.

Follow the Required Procedures and Meet the Deadlines Involved

If you do notice any defects in your new home, there are certain procedures you must follow, and a time limit within which to follow them to either resolve the dispute or preserve your ability to ultimately take the matter to court. For starters, Florida law says that the builders or contractors involved in the construction of your home are entitled to notice of the defects and an opportunity to fix them before you can sue them (See Florida Statutes, Chapter 558).

The notice requirements are too extensive to list in their entirety here, but they state, among other things, that property owners must provide the responsible contractors with written notice of the defects at least 60 days prior to filing a lawsuit about them. If the complaint involves an association representing more than 20 units, 120 days’ notice must be given. Additionally, homeowners must try to give such notice within 15 days after discovering the defects, if possible.

After receiving such notice from a homeowner, the contractor has the right to perform inspections to determine whether the defects exist and whether the homeowners’ complaints are correct. The contractor must, within a specific timeframe, respond in writing to the homeowner. The contractor’s response may include reports and results of any inspections performed, state whether the contractor is willing to make repairs, and indicate whether the contractor disputes the homeowners’ complaints. The laws go on to give further details about the inspection and response process, and what happens after the contractors provide the homeowners with their response.

If you follow these procedures and are still not able to get your issues resolved, you may consider filing a lawsuit. If you have not already consulted with an attorney, now is a good time to do so. Together, you should consider whether there are any alternatives to filing a lawsuit, how serious the defects are, what you might potentially gain from suing in light of the risks and costs involved, and so on.

Florida law also provides deadlines by which you are required to bring certain kinds of lawsuits, or forever lose the rights to sue (known as statutes of limitation, in legalese). In the case of new home defects, you are generally required to file your complaint within four years from the time that you discovered, or should have discovered the defect. (See Florida Statute § 95.11(3)(2).) Hopefully you had thorough inspections completed before purchasing the home, because if you did not order these services, a court might decide that you should have known about a defect a lot earlier than when you actually found out about it.

The Importance of Hiring a Seasoned Construction-Defects Professional

Construction defect law is a busy practice area in Florida, given the abundance of new homes, apartment buildings, and condominiums constantly being built. The laws governing complaints in this area are a bit more complex than if you just slipped and fell in a store. There are quite a few procedures and deadlines that you need to meet, and if you don’t, you could risk losing your rights against the builder. It is best to consult with an experienced construction defects or condominium attorney early in the process.

by: Rebecca Taylor

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