The recent tragedy of the Champlain Tower collapse in Surfside, Florida, has brought an even greater focus on building safety and maintenance by governments, building owners, and condominium and community associations throughout Florida. As efforts are made to inspect and ensure the safety of buildings across the state, building owners, and condominium and community associations in charge of managing and maintaining buildings, need to be keenly aware of section 95.11(3)(c), Florida Statutes. This statute, known as Florida’s construction statute of repose, imposes a strict 10-year deadline on any legal claims founded on the design, planning, or construction of an improvement to real property in Florida, with any claims not brought within the deadline completely barred. This blog explains the key features of the statute and its application, and recommends critical steps building owners and community associations should take to protect themselves in advance of the deadline.
1. What is a Statute of Repose and How is it Different than a Statute of Limitations?
A statute of repose acts as an absolute bar to certain types of legal claims from a specified triggering event. The purpose of a statute of repose is to cut off the right of action after a specified time measured from a discrete event, regardless of the time of the accrual of the cause of action or when the claimant knew or should have known of the claim. Firestone Tire & Rubber Co. v. Acosta, 612 So. 2d 1361, 1363 (Fla.1992).
This is different than a statute of limitations, which also sets a time limit for bringing of claims, but begins to run from when the cause of action accrued. For example, the 5-year statute of limitations under Florida law for breach of contract begins to run from date of the breach. See Holiday Furniture Factory Outlet Corp. v. State Dep’t of Corr., 852 So.2d 926, 928 (Fla. 1st DCA 2003). Further, statutes of limitation are generally subject to what is known as the discovery rule, meaning that the running of the statute of limitations does not begin until the claimant knew, or reasonably should have known, of the breach. Therefore, if a claimant did not know, and should not have reasonably known, of the breach until a year after it occurred, the 5-year statute of limitations for breach of contract would not begin to run until the breach was discovered, meaning that the claimant would have, in effect, 6 years from the date of breach in which to bring a claim under the statute of limitations.
“On the other hand, a statute of repose, which is usually longer in length, runs from the date of a discrete act on the part of the defendant without regard to when the cause of action accrued.” Kush v. Lloyd, 616 So. 2d 415, 418 (Fla. 1992). Accordingly, even if the cause of action has not accrued, or the claimant does not discover the breach or injury, until after the statute of repose has run, the cause of action is still barred by the statute of repose. See Pullum v. Cincinnati, Inc., 476 So. 2d 657 (Fla. 1985) (holding that Florida’s statute of repose for product liability claims applied to bar causes of action which had not accrued until after the twelve-year statute of repose had run). In other words, a statute of repose is a firm and unchangeable deadline, after which the cause of action simply cannot be asserted, no matter when it accrued or was discovered.
2. How Does Florida’s Construction Statute of Repose Work?
Florida’s construction statute of repose is found in section 95.11(3)(c), Florida Statutes, and it applies to any “action founded on the design, planning, or construction of an improvement to real property”. In other words, it applies to any claim of any type, including, without limitation, breach of contract, negligence, breach of contract, breach of warranty, building code violations, etc., related to the design, planning or construction of any building or other construction project in Florida. The construction statute of repose has been found to not only apply to the construction of new buildings, but also to repairs to existing buildings,[1] and to components within buildings.[2] The legislative intent behind the construction statute of repose was to broadly protect engineers, architects, and contractors from stale claims. Snyder v. Wernecke, 813 So. 2d 213, 216 (Fla. 4th DCA 2002).
The statute provides that any such “action must be commenced within 10 years after” the later of:
(1) the date of actual possession by the owner,
(2) the date of the issuance of a certificate of occupancy,
(3) the date of abandonment of construction if not completed, or
(4) the date of completion of the contract[3] or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer. Fla. Stat. § 95.11(3)(c).
In other words, the statute of repose will run 10 years from the latest of those four events to have occurred in connection with any construction project. The statute also makes clear that if the construction was performed under a duly issued building permit, “the correction of defects to completed work or repair of completed work, whether performed under warranty or otherwise, does not extend the period of time within which an action must be commenced.” Fla. Stat. § 95.11(3)(c).
Florida’s statute of limitations for construction, also found in section 95.11(3)(c), Florida Statutes, is 4 years, and it also runs from the latest to occur of those same events. However, unlike the statute of repose, the construction statute of limitations provides that “when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence,” i.e., the discovery rule. Fla. Stat. § 95.11(3)(c). “Latent defects 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). So, for example, if a latent defect was not discovered until 4 years after construction was completed, the claimant would have 4 more years from discovery (for a total of 8 years from project completion) in which to timely bring a claim under the statute of limitations.
However, the construction statute of repose applies to bar any claim more than 10 years after the latest of the triggering events, regardless of whether a defect was latent and was not discoverable within the ten year period. So, for example, if a latent defect was discovered 8 years after completion of construction, the claimant would only have 2 more years within which to bring the claim before the 10-year statute of repose would act to time bar the claim. A claim discovered 11 years after completion of construction, would be time-barred by the 10-year statute of repose before it was even discovered. It is for this reason that the construction statute of repose would bar any claims that might otherwise exist based on any defects in the original design, planning or construction of the Champlain Tower, since construction was completed almost 40 years ago, and the focus of lawsuits regarding the collapse will likely be on engineering and design reviews and work done within the last 4 years.
3. What Should Building Owners and Community Associations Do to Protect Themselves?
As can be seen, Florida’s construction statute of repose can have enormous impact on potential claims arising out of the design, planning and construction of any building or improvement to real property in Florida by barring any such claims 10 years after completion of construction, no matter when the defect or problem was discovered. This can be especially pertinent to structural defects, which often may not manifest themselves visibly for years after construction is completed.
In order to try protect themselves, building owners, and condominium and community associations, must first be aware of the construction statute of repose and when it runs for the subject building. It is recommended that the most conservative and earliest date be used to determine the statute of repose deadline, which will depend on the specific facts and circumstances, but may often be the date of a temporary certificate of occupancy or the owner’s actual possession of the building. This date must be known and planned for so that any potential issues that arise or defects that are discovered that might lead to the need for a claim can be evaluated with the knowledge of the outside deadline for a claim to be asserted, and action timely taken if necessary to preserve a claim. Note that this date may be different for different aspects of a community. For example, different buildings in the same condominium may have been issued certificates of occupancy on different dates, and the statute of repose deadline needs to be determined for each.
Second, it is recommended that, in addition to normal maintenance and inspection, substantive experts should be engaged to conduct a full and complete top to bottom building inspection in advance of the statute of repose deadline. This should be scheduled long enough after construction is completed to try to ensure that any potential issues or defects will have manifested themselves and be discoverable, but also enough in advance of the statute of repose deadline that there is time to assert any legal claim that might be necessary prior to the statute of repose deadline. At a minimum, such an inspection should be conducted no later than a full year before the statute of repose deadline to allow sufficient time for completion of the investigation and assessment of any potential defects with sufficient time to allow a lawsuit to be timely prepared and filed prior to the statute of repose deadline if necessary for any newly discovered issues.
[1] See Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1175 (finding section 95.11(3)(c) to claims regarding installation of new roof on existing building).
[2] See Plaza v. Fisher Development, Inc., 971 So. 2d 918, 924 (Fla. 3d DCA 2007) (holding that store’s conveyor system was a structural improvement to real property subject to section 95.11(3)(c)); Harrell v. Ryland Grp., 277 So. 3d 292, 298 (Fla. 1st DCA 2019) (finding that a claim based on a defectively installed attic ladder was “founded on the construction of an improvement to real property” despite the fact that the ladder was pre-assembled).
[3] “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.” Fla. Stat. § 95.11(3)(c).