2017 Enrolled Amendment to Statute of Repose for Construction Cases
In Florida, the time for bringing a lawsuit for construction defects that are latent is “10 years after 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 or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, which ever date is latest.”
In 2015, the Fifth District Court Of Appeal of Florida determined that “the date of completion,” of a contract meant “completion of performance by both sides of the contract, not merely performance by the contractor”. In the case the court was deciding, that meant the date on which final payment was actually made. The defendant contractor had argued that the contract had been completed when the contractor’s performance was completed which, obviously, occurred before final payment. Had the date of the contractor’s final performance been the date for completion of the contract under the statute of repose, the owner’s construction defect claim would have been time-barred. See Cypress Fairway Condo. v. Bergeron Const. Co. Inc., 164 So. 3d 706, 708 (Fla. 5th DCA 2015), reh’g denied (June 1, 2015).
The 2017 legislative change provides further definition to the term completion of the contract:
Completion of the contract means the later of the date of final performance of all the contracted services or the date that final payment for such services becomes due without regard to the date final payment is made.
The legislative change may (or may not) have made a difference in the Cypress Fairway case; but, it will provide greater certainty in construction defect cases in general. If signed by the governor, this amendment will take effect on July 1, 2017 and will only apply to causes of action that accrue after that date.
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Update: Governor Scott approved this amendment on June 14, 2017.