In the closing days of the 2003 session, the Florida
Legislature adopted Senate Law 1286 to require homeowners to
give contractors 60 days written notice before filing a lawsuit
for construction defects. Governor Bush signed it into law
effective May 27, 2003, as Chapter 2003-49, Laws of Florida. It
says it applies to all homeowner construction defect claims
accruing after that date, even if the contract was entered into
The legislative staff report says the law "creates a process to
give homeowners...the opportunity to settle legal claims related
to construction defects...before a lawsuit is filed." It applies
to new construction as well as remodeling. It only applies to
It is apparent from reading the law's process that it favors the
construction industry in many ways:
1. The homeowner cannot file suit for damages until first giving
the contractor 60 days written notice specifying the defects.
The homeowner is supposed to send the notice within 15 days
after discovering the defect.
2. The contractor then has 5 days to inspect the home, but it is
not required to. The homeowner must give access during normal
working hours, apparently even if the remodeling work was done
at night and weekends for the homeowners convenience.
3. After that the contractor has another 5 days to notify
subcontractors and suppliers of defects it thinks they are
responsible for, and each of them has 5 days to inspect the
home, again during normal working hours.
4. The contractor is given 25 days after receipt of notice of
defects to respond to the homeowner in one of 3 ways: (a) the
contractor may offer to "remedy" the defect at no cost to the
homeowner, or (b) the contractor may offer to "compromise and
settle" the claim by monetary payment within 30 days, or (c) the
contractor may dispute the claim.
5. All of the above is an arguably fair process, but here is
where it tips to favor the contractor: the homeowner is given 15
days to reject the contractor's offer, otherwise it is deemed
accepted. The only method of rejection is to return the offer to
the contractor with the word "rejected" printed on it. Thus,
mere inaction by the homeowner results in acceptance of the
This is only the tip of the iceberg. The law is filled with
ambiguities and inconsistencies. It precludes filing suit for
damages, but not for specific performance. So, in theory, if the
defect is of an emergency nature and if the only contractor who
could repair it is the contractor to be sued, then the homeowner
could sue for specific performance without going through the
pre-suit notice procedure. The problem with this is that the
homeowner's claim for damages may be waived by doing so. And the
homeowner could not sue for both damages and specific
performance and just abate the damages portion because the law
specifically abates the "action" which is the entire suit.
The law even requires pre-suit notice before arbitration, and it
even controls over arbitration provisions in contracts.
Therefore, even if the parties planned their own alternative
dispute resolution mechanism by contract, this law would take
that contracted right away and require the homeowner to follow
the pre-suit claims process before seeking arbitration.
There are a few words in the law that broaden its reach beyond
the usual construction situation. For example, the law includes
in its definition of "contractor" anyone that is engaged in the
business of selling dwellings or attachments thereto. This is a
very broad definition. It could include someone who buys and
sells houses and does not live in them. It could include someone
who sells interior decorations that are attached to houses.
Any suggestion that this law creates a process for homeowners to
settle claims prior to litigation without the need to hire a
lawyer is misleading. From now on, every homeowner who has a
construction defect MUST hire a lawyer to take them through the
pre-suit claims process.
The legislative staff report notes that the law's process is
similar to the pre-suit screening process for medical
malpractice actions. It is unlikely that any patient has ever
pursued that process without a lawyer.
Chapter 2003-49, Laws of Florida (2003)
2003 Senate Bill 1286ER
Staff report #1
Staff report #2
Senate vote history
St. Petersburg Times article 6/21/03, Homes section, page 1
Note: This article is
for background purposes only and is not intended as legal
advice. It is not based on the current law. The 2003 law was
codified as Florida Statutes Sections 558.001 - 558.005. The law
was amended thereafter. Effective 10/1/06 it was extended
beyond residential property to also apply to other real property
with improvements. This article was written before the 2004 and
subsequent laws took effect and has not been updated to reflect
the new laws.