Florida's New Construction Claims Statute 558
B. Reference the Bases of the Owner’s Technical Entitlement
A well prepared claim will reference the bases under which the claim is being made. Specifically, what are the bases for the Owner’s entitlement? An Owner’s entitlements may flow from numerous sources, such as the construction contract, the construction plans, industry standards, the building codes, or possibly a purchase contract. If the Owner feels like he has defective paint, he needs to provide a valid basis for that position. What does the contract say? What does the paint manufacturer say on the paint can? Providing a solid basis for the entitlement strengthens the claim and gives it credibility.
A. Homeowner’s Inspector
Homeowners all too often fail to appreciate the need for a professional inspector or expert. Relying on “Cousin Fred”, who used to work in a lumberyard, as their expert on sagging trusses doesn’t work. Most “home inspectors” aren’t professionals and their testimony may be worthless in court. Architects make good all around inspectors but if a defect involves a specific issue such as plumbing, a plumbing contractor or a plumbing engineer would be a better choice.
B. Contractors’ and Design Professionals’ Inspectors
Initially, the contractors and/or design professionals named in the claim should make their own investigation of the alleged defect. However, I have found it to be useful to have an independent and un-biased expert also review the claim. Sometimes we can be too close to the forest to see the trees. Pride can also get in the way.
C. Types of Inspections
Inspections can be both invasive and non-invasive. Initially, I recommend sticking with non-invasive and non-destructive methods. An experienced inspector can glean a lot from a thorough visual inspection. Remember, the Statute makes the party who performs destructive testing responsible for the restoration costs. In addition, there are many devices on the market, such as infra-red sensors and electronic moisture detectors, that are powerful non-invasive tools. True professionals will own or rent these tools.
D. Inspection Documentation
Good documentation of the inspection is critical, especially if you are on the defense. First of all, you may not be afforded unlimited access to the property if the facts get cloudy in your mind months later. Second, you’ll need documentation for your records. Digital photos are cheap and very effective. A detailed log of what photos you took and where they were taken is essential. Field notes are important, including instrument readings. If samples are taken, they need bagged and tagged. Samples sent to labs should be kept with a written report from the lab.
3. Repairs and Remedies
A. Description of the Repair or Remedy
If a Respondent is agreeable to make repairs, the Statute requires that Respondent to file a report clearly identifying what repairs they are willing to make and what the timetable for those repairs will be. The more specific the description of the proposed repairs the better for everyone. It should outline the defect to be repaired, the location, the approximate quantity, and the repair procedure. Photos, sketches, and material specifications are helpful. I also recommend a procedure be established to determine that the repair was done in accordance with the repair proposal, hopefully avoiding an argument after the repair about its adequacy and acceptability. Appointing a mutually acceptable neutral expert is one way to handle this.
B. Performance of the Repair
If the Homeowner is agreeable to the Respondent’s repair proposal, the Homeowner must provide reasonable access during normal working hours to the property. In my opinion, this means continuous access. Not just the days the Homeowner is off work. Some repairs may require permits, so the Building Department will also need access for inspections. As noted above, a process of inspection and a method of determining adequacy and acceptance of the repair should be agreed upon in advance. The Statute is silent on this issue, leaving it up to the parties.
C. Monetary Settlements
In my experience, many times monetary settlements are preferred by the Homeowners, the contractors, and the design professionals. Personalities and friction resulting from the on-going conflict can make working together difficult to perform the repairs. It is very important to define what defects and consequential damages, if any, are covered by the monetary settlement. This is best handled by an attorney.
4. Today's Most Common Defects
A. Moisture – 70% of the Claims
Moisture is the biggest problem in Florida construction defects today. Moisture problems come in a variety of ways, mostly from leaks. Leaky roofs, windows, and doors are common. Leaky roofs are usually from poor workmanship but sometimes can be from poor design. Leaky windows and doors are usually related to poor installation but can also be from faulty manufacturing. Flooding is also common, especially in low lying areas. Air conditioning that is oversized will not adequately lower the humidity and mold and mildew can result. Air conditioning units that are too cold, especially in kitchens, baths, and laundry rooms, will cause the supply air grills to sweat. Condensation in wall cavities may occur if a vapor barrier is installed on the inside face of the exterior wall assembly. Leaks through walls from wind driven rains has been more common lately because the stucco and paint barriers are getting thinner and thinner.
B. Air conditioning – 20% of the Claims
Human beings have a very narrow “comfort zone” as defined by ASHRAE. The comfort zone is related to noise, air velocity, temperature, and humidity. In my experience, just as many complaints are related to comfort zone complaints as with equipment breakdowns. Poor design and workmanship are common. Most of the equipment is fairly reliable today, if maintained.
C. Other – 10% of the Claims
Real structural problems are not that common today. Because structural failures kill people, design professionals, contractors, manufacturers, and code officials take it very seriously. Most of the structural claims I see today involve cracks in stucco, masonry, and concrete. A lot of these cracks are from ordinary structural settlements or from shrinkage that occurs when concrete products cure. In addition, many Homeowners don’t realize that there are both code and industry standards that allow variations in the dimensions and finish of building structures (tolerances). Perfection is just not possible. Plumbing and electrical problems are also not that common today, probably because these trades seem to attract the best tradesmen. Most of the ones I see are leaks or lack of maintenance. Pools and pool decks are very maintenance intensive. Cracks are usually due to inadequate backfill of the pool shell and under the pool decks. Finally, there is the category I call "Failure to meet the Owner’s Expectations." The Homeowner mistakenly thinks his home should have been built perfectly using the highest grade of materials available and require no maintenance. Contractors and design professionals also contribute to this problem when they oversell themselves. I built a condominium several years ago that unfortunately became the target of a lawsuit. During discovery, the Condominium Association found that the Architect’s contract required him to provide a "world class" product. Ultimately, the Architect regretted that clause when he and his professional liability insurance carrier paid the bulk of the claim to settle the lawsuit.
5. Design Defects v. Construction Defects
A. Design Defects
Architects usually lead the design team on a project. They engage Engineers and other specialty firms to assist them. The Florida Building Code requires Architects and Engineers to provide a set of construction plans complying with the Code as a condition precedent to the issuance of a building permit. Plans for one and two family residences can be certified for code compliance by a contractor (FS 553.79). Since both Architects and Engineers are human, they make mistakes. The law does not require Architects and Engineers to produce perfect plans. However, the law does require the plans to be prepared within a standard of care normally expected in the location in which the work is done. Design defects can involve dimensional errors, code compliance, or mistakes in engineering calculations. Sometimes they are just poor judgement. Even though the plans are reviewed for code compliance by a State licensed Plans Examiner at the Building Department, the responsibility for code compliance still rests with the Architect and Engineers. And mistakes do get by the Plans Examiners sometimes, they’re not perfect either. For example, the Florida Building Code requires stair risers to be 7" or less in height. If the plans specify an 8" riser, it’s a design defect and it is the responsibility of the Architect to remedy.
B. Construction Defects
Most construction contracts are based on a specific set of plans and specifications (contract documents) prepared by the project design professionals. In addition, most construction contracts expressly require the contractor to perform the work as shown on the contract documents and not to vary from those documents without written approval. Manufacturers' installation instructions and published industry standards may be included in the contract by reference. Any work that does not conform to the contract documents is a construction defect. Responsibility for code compliance can be tricky sometimes. Using the stair riser example in the paragraph above, the code requires that adjacent stair risers not vary in height more than three sixteenths of an inch. If the Architect properly specifies a 7" stair riser, and the contractor builds them outside the code’s tolerance, it's a construction defect.
6. Defects v. Deficiencies
I get a lot of questions regarding the difference between a defect and a deficiency. Webster defines a defect as "an imperfection, a flaw, or a blemish." Webster further defines a deficiency as "the absence of something essential or an incompleteness." Based on Webster's definitions, there seems to be a clear differentiation between the two. However, under the Statute, I'm not sure it makes a difference. The Statute defines a "construction defect" as a "deficiency," apparently making them essentially synonymous in the eyes of the State of Florida.
7. Construction Defect v. Maintenance Defect
A. Buildings need maintenance from day one
Buildings encounter aging, wear and tear, and sometimes abuse. In any case, regular maintenance is required to keep them functioning and in good condition. Many construction defect claims are really a lack of maintenance. I was the Engineer and Contractor on a large retail complex several years ago. After the complex had been open for six months, the manager called and was upset about the air conditioning tripping off on high pressure all the time. His A/C maintenance staff told him it was my fault because the unit was undersized and overworked. When I came out to inspect it, I found the roof top condensing unit coils clogged with leaves, causing the unit to overheat and shut down. The manager’s A/C maintenance staff just wasn’t doing its job. In Florida, we also find oceanfront properties experiencing heavy and rapid corrosion on painted steel surfaces. Brevard and Volusia Counties have the most corrosive salt environment in the world. Even using the best epoxy paints, without constant washdowns and paint touchups, steel surfaces on the coastline will quickly deteriorate. Exacerbating this problem is the unrealistic expectation problem buyers of $800,000 condos sometimes have, especially when the developer’s sales staff has marketed the building as “luxury”, and “low maintenance”. Residents just can’t understand why stuff is rusting after a year or two. However, you’ll notice they make sure their Mercedes gets washed every week and waxed every few months. On the other hand, it is expected that the Architect specified a high performance paint for use in a highly corrosive environment and that the Contractor applied it in accordance with the Architect’s specifications and/or the manufacturer’s instructions. If not, we may have a situation where the cost of the rust repair is the responsibility of more than one party.
B. Recurring maintenance requirements
Building maintenance requirements come in a variety of frequencies, ranging from daily to weekly, monthly, annually, and even multiple years. However, unlike automobile manufacturers, builders rarely provide their clients with a recurring maintenance program when the building is turned over to the Owner. With rare exception, building maintenance activities can be simply programmed on a recurring schedule basis. In Florida, condominium developers must provide a three year statutory warranty on all of a condominium’s common elements, on the sole condition that the condominium be properly maintained. Because of this, sophisticated Florida condominium developers provide a recurring maintenance program to the Association at turnover with the advisory that failure to follow the program may invalidate the developer’s warranty.
C. Examples of maintenance deficiencies
Some examples of maintenance deficiencies which commonly give rise to construction deficiency claims include:
- Clogged gutters and drains
- Dirty A/C filters and coils
- Failure to water and fertilize landscaping
- Lubrication and cleaning of moving parts
- Door and window hardware
- Garage doors
- Roof cleaning
- Repair of paint, caulking, cracks in stucco
- Pools and decks not cleaned