In a recent ruling, a Florida appeals court provided come clarity on the application of pre-suit notices in regards to construction defect claims.

Under Florida’s Statute of Repose, a claimant must initiate an “action” for a construction-related issue/claim within ten (10) years of the latest 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 not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer. The statute goes on to define any “action” as a “civil action or proceeding”.

What is a 558 Pre-Suit Notice?

If you were to initiate a construction defect claim, you, as the claimant, must provide the general contractor with a pre-suit notice of a construction defect, as well as an opportunity to inspect and cure the defect prior to initiating an lawsuit action.

The 558 pre-suit process is not often an expedited process. Most 558 proceedings can take several weeks, requiring multiple steps.

Does a Pre-Suit Notice Constitute an “Action” in a Construction Defect Claim?

Prior to the recent court ruling, the definition of a legal “action” under Florida’s Statute of Repose in regard to construction defects remained vague.

The Court’s decision arose from a claim wherein the necessary 558 pre-suit notice was filed within the statute’s 10 year window, however by the time the 558 proceeding had concluded and subsequent lawsuit filed, that 10 year window had passed. The defendant(s) argued that since the filing deadline had lapsed, the claimants’ suit was statutorily barred.

Overturning an initial ruling in favor of the defendant(s), the Florida Fourth District clarified the definition of a constituted “action” in regards to construction defects claims. It also established a precedent that the requisite 588 pre-suit notice should not be used with the intention to bar defect claims.

Additional Resources

You can find out more about the court’s ruling here.

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