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Triggering Florida’s Statutory Warranty in Condominium Construction Defect Litigation

February 13, 2015

by KD's Construction Group

Developers, contractors, subcontractors and suppliers are required by law to provide various implied warranties for condominium construction pursuant to Florida Statute Section 718.203. These warranties include, but are not limited to, each condominium unit, structural components of the building, the roof, mechanical and plumbing elements, and other improvements to the condominium.1 The warranty for these items begins to run from the date of completion of construction of the building or improvement, and is typically either for three years or one year.2 The Statute goes on to define “completion” as the issuance of a certification of occupancy (“CO”) for the entire building or improvement or the equivalent authorization issued by the governmental body having jurisdiction.3

So, if the statutory warranty runs from issuance of the certificate of occupancy and the warranty expires three years (or one year) from that date, then it should be obvious that no warranty claim may be made for defects occurring or discovered thereafter, right? Not necessarily. In many cases, this issue is the subject of much debate, because Plaintiffs often allege many defects to be latent. Latent defects are those that are "generally considered to be hidden or concealed defects which are not discoverable by reasonable and customary inspection, and of which the owner has no knowledge." Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056, 1058 (Fla. 3d DCA 2002).

Nevertheless, a strong argument can be made that to bring a claim for breach of the statutory warranty, the alleged defect must manifest, i.e., become evident in some way, during the statutory warranty period. The Florida Supreme Court has specifically stated that the warranty “guarantees” provided by this Statute apply to defects that occur during the lifetime of the warranty, i.e., within three years of the date of completion of construction of the condominium or improvement. Charley Toppino & Sons, Inc. v. Seawatch at Marathon Condominium Ass’n, 658 So. 2d 922,924 (Fla. 1994). The statement that the warranty applies to defects that “occur” during the life of the warranty arguably implies that the defect must manifest itself during that period of time.

Similarly the Second District Court of Appeal has touched on this issue, albeit likely as dicta, in Dubin v. Dow Corning Corp., 478 So. 2d 71 (Fla. 2d DCA 1985), where the Court noted, in an express contractual warranty case, that the “breach” of the warranty occurs when the defect is or should be discovered. Also, in Wright v. Fidelity & Casualty Company of New York, 139 So. 2d 913 (Fla. 1st DCA 1962), the Court found that since there was no record evidence the alleged defects occurred within the contractual warranty period, it could not be held as a matter of law that the contractor failed to cure the alleged defects under the warranty clause of the contract. Though not directly addressing the issue, these cases provide support for the position that defects, to be covered by the statutory warranty, must manifest, i.e., “occur” or be “discovered,” during the warranty period.

Assuming a defect covered by the statutory warranty must manifest itself during the warranty time period, there is often a quandary many Plaintiffs find themselves in when asserting a statutory warranty claim. This quandary flows from the interplay between the implied statutory warranty and the four-year statute of limitations governing construction defects. See §95.11(3)(c), Fla. Stat. Notably, this statute of limitations contains a latency section which states that, if the action involves a latent defect, the statute then runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. Id. More specifically, it has been held that it begins to run on the date there is notice of an invasion of a legal right or a person has been put on notice of his right to a cause of action. See Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla. 1983); see also Snyder v. Wernecke, 813 So.2d 213 (Fla. 4th DCA 2002).

Since some Plaintiffs initiate statutory warranty-based construction defect actions many years after the issuance of the CO, they are often forced to argue that the complained-of defects were latent, seeking to trigger the latency exception to the construction defect statute of limitations.4 Notably, there is no express latency exception in the warranty statute. To get around this quandary in cases where suit is filed more than four years after the expiration of the statutory warranty period, Plaintiffs may allege the defects were latent and only discovered within four years prior to the lawsuit (to fall within the statute of limitations), while at the same time pleading the defects existed at the time construction was completed (to show the defects are within the warranty). Notably, such allegations require the Plaintiff to admit the defect’s manifestation/discovery did not occur during the statutory warranty period because, if it did, the statute of limitations would likely be violated.

Faced with this scenario in a recent case, we successfully moved to dismiss the statutory warranty count, citing the above cases and arguing that the complaint’s allegations showed the defects did not manifest during the three-year statutory warranty period. We emphasized that, unlike the statute of limitations, the warranty statute simply contains no latency exception. Therefore, it only makes sense that, to maintain a breach of statutory warranty claim, the defect must occur, i.e., manifest or be discovered, during the warranty period. We asserted that to hold otherwise would render the statutory warranty period meaningless.

Thus, in our view, in any case where it can be shown that an alleged defect may have manifested/been discovered after the warranty period, a strong argument can be made that any statutory warranty claims should be dismissed.

1The statutory warranties are not identical for developers, contractors and suppliers, and the construction items warranted by developers appear to be larger in scope than those warranted by contractors and suppliers.

2For developers, this warranty period is generally three years or one year after owners other than the developer obtain control, but no later than five years. It should be noted that not all warranties for items covered by this statute are for three years, and warranties for some items are less than three years. See §§718.203, Fla. Stat.

3In jurisdictions where no certificate of occupancy or its equivalent is issued, completion generally means substantial completion of construction, finishing, and equipping of the building or improvement according to the plans and specifications.

4It should be noted that the filing of a Chapter 558 Notice tolls the statute of limitations for construction defects. See §558.004, Fla. Stat.



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