By Rob Samouce - Special to the Daily News
Sunday, August 6, 2006

The 1996 legislative session was good to some businesses whose customers are condominium owners, homeowners and other property owners. <noscript> <p>Last month, we saw how recently enacted House Bill 7121 benefits manufacturers and installers of power generators by mandating that residential buildings over 75 feet must have or install generators to power elevators in the event of power outages before Dec. 31, 2007.</p> <p>This month we will review two new state laws that benefit developers, builders and contractors by providing them new protections and additional insulation from property owners who have claims against them for construction defects.</p> <p>First, House Bill 1089, effective as of July 1, 2006, reduced the time a developer, builder or other contractor is responsible to a property owner for latent (or hidden) construction defects from 15 years to 10 years.</p> <p>Sometimes it takes many years for hidden defects in a structure to surface. Before the change in the law, the defect could surface 14 &Acirc;&frac12; years from when the building was constructed and the property owner could still go after the contractor, builder or developer to fix or pay for the defect. Now, if a hidden defect arises for the first time on, or after, the first day of the 11th year, the property owner will have no recourse against the entity that constructed, or was responsible for, the defect. In some instances, this change in the law will cause some property owners an enormous amount of money as some hidden defects, such as structural integrity problems, can be the most expensive to fix.</p> <p>Second, House Bill 1139, effective as of Oct. 1, 2006, expanded the detailed and complicated pre-suit notice procedures and requirements for construction defect claims from applying only to residential owners to now apply to all property owners (except property used for public transportation projects).</p> <p>Section 558.001, Florida Statutes contained extensive pre-suit notice procedures and requirements that residential owners had to, and still have to, follow before they can file a claim against a contractor, builder or developer for construction defects. The procedures have various detailed time lines and procedures for certain notices, offers, counter offers and rejection of offers that all are required to happen before a construction defect suit can be filed.</p> <p>The apparent original intent of this statute was to try to get the parties to settle construction defect claims prior to a suit being filed. In reality, all it has done is delayed construction defect lawsuits usually to the benefit of the developers, contractors and builders and at the expense of the residential owners. Since Section 558.001 was originally enacted in 2003, we have not seen any increase in pre-suit settlements in construction defect cases. In fact, there have been probably fewer pre-suit settlements than before because the parties cannot just go schedule an early on meeting and try to come to a settlement. The labyrinths of procedures that must be followed do not allow for early settlement meetings; even if the desire of the parties is to do so. By the time the pre-suit procedures are concluded, the parties are usually more apart in their positions than if they could have just informally sat down at the start and come to settlement.</p> <p>Now, besides just residential owners having to go through these pro-developer pre-suit delay requirements, all other property owners, which would include commercial business owners as well as governmental property owners (except for transportation projects), will have to now comply.</p> <p>It appears from these new laws that the developer, builder and contractor lobby is doing a good job at persuading our state legislators to see things their way.</p> <p>&acirc;&#128;&cent;&acirc;&#128;&cent;&acirc;&#128;&cent;</p> <p><em>Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, &amp; Gal, P.A. concentrates his practice in the areas of community associations including condominium, cooperative and homeowners associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.</em></p></noscript>