House Staff Analysis: PCS for CS/HB 583 Limitations of Actions (Regulatory Reform Subcommittee)
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- 2022 3101 Regulatory Reform Subcommittee Proposed Committee Bill Analyses Fn Pcs0583 Rrs
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- 2022 3101 Regulatory Reform Subcommittee Proposed Committee Bill Analyses Fn Pcs0583 Rrs
Summary
A Florida House of Representatives staff analysis of PCS for CS/HB 583, Limitations of actions other than for the recovery of real property, sponsored by the Regulatory Reform Subcommittee and dated February 5, 2022. The analysis describes current law, under which actions founded on the design, planning, or construction of an improvement to real property carry a four-year statute of limitations and a 10-year statute of repose under s. 95.11(3)(c), F.S. It states that the bill repeals the 10-year statute of repose and starts the four-year period 45 days after completion or abandonment of the improvement, allows seven years for latent-defect actions, and allows 15 years where a material violation is shown by clear and convincing evidence. It adds background on the Florida Building Code and licensing boards, and says the bill takes effect July 1, 2022.
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“House Staff Analysis: PCS for CS/HB 583 Limitations of Actions (Regulatory Reform Subcommittee).”
Original at www.flhouse.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-3101-regulatory-reform-subcommittee-proposed-committee-bill-analyses-fn-pcs0583-rrs/
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for CS/HB 583 Limitations of actions other than for the recovery of real property
SPONSOR(S): Regulatory Reform Subcommittee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Regulatory Reform Subcommittee Brackett Anstead
SUMMARY ANALYSIS
Florida law sets forth time periods within which claims must be made based on deficiencies in construction or
flaws in materials used during construction, known as construction defects. If a lawsuit is not filed related to a
defect within the given time frames, any claims regarding the defect will be barred. Chapter 95, F.S., provides
guidelines for how property owners and contractors should handle cases where a suspected defect is involved.
In Florida, a lawsuit for construction defects must be brought to court within four years from the end of the
project. Specifically, the clock for the statute of limitations for construction defects typically begins to run from
the latest date of:
Actual possession by the owner;
Issuance of a certificate of occupancy;
Abandonment of construction if not completed; or
Completion or termination of the contract between the professional engineer, registered architect, or
licensed contractor and his or her employer.
If the defect is latent, hidden, or unable to be ascertained, the time frame for the statute of limitations begins
on the date the defect was discovered or should have reasonably been discovered with due diligence.
However, under no circumstances may a lawsuit be brought after ten years. Under the ten-year statute of
repose, actions must be commenced within ten years after the latest of the above listed events. The bill
repeals the 10-year statute of repose.
The bill revises the statute of limitations for actions founded on the design, planning, or construction of an
improvement to real property. The bill provides that the four-year time period for the statute of limitations
begins to run 45 days after the date of:
Completion of the improvement, which is defined to include the date of issuance of the certificate of
completion or occupancy, or the closing of the building permit; or
Abandonment of the improvement, if the improvement is not completed.
The bill provides that if an action involves a latent defect the action must be commenced within seven years,
instead of four years, with the time beginning 45 days after completion or abandonment, and repeals the
provision that allowed the time to begin on date the defect was discovered or should have reasonably been
discovered with due diligence.
If an action alleges a material violation and the person alleging the material violation can show by clear and
convincing evidence that the engineer, architect, or contractor or his or her employer knew of the material
violation at the time of construction, the action must be commenced within 15 years, with the time beginning
45 days after completion or abandonment.
The bill does not appear to have a fiscal impact on state and local governments.
The bill provides for an effective date of July 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcs0583.RRS
DATE: 2/5/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Statutes of Limitations and Repose
A statute of limitations is an absolute bar to the filing of a lawsuit after a date set by law. A law creating
a statute of limitations specifies when the time period begins, how long the limitations period runs, and
circumstances by which the running of the statutes may be tolled. A statute of limitations usually begins
to run when a cause of action accrues, which is generally when the harm occurs.
Current law provides that actions founded on the design, planning, or construction of an
improvement to real property are subject to a four-year statute of limitations. The four-year time
period of the statute of limitations begins to run from the latest date of: 1
Actual possession by the owner;
Issuance of a certificate of occupancy;
Abandonment of construction if not completed; or
Completion or termination of the contract between the professional engineer, registered
architect, or licensed contractor and his or her employer.
In actions involving a latent defect, the four-year statute of limitations does not begin to run until the
defect is discovered or should have been discovered with the exercise of due diligence.2
A patent defect is a defect that would have been obvious to the owner had the owner exercised
reasonable care.3 A latent defect is a hidden flaw or imperfection that cannot be discovered by
reasonable and customary inspection, and of which the owner has no knowledge.4
Statute of Repose
A statute of repose is similar to a statute of limitations. A statute of repose bars a suit after a fixed
period of time after the defendant acts in some way, even if this period ends before the plaintiff has
suffered any injury. Although phrased in similar language, a statute of repose is not a true statute of
limitations because it begins to run from an established or fixed event, such as the delivery of a product
or the completion of work, which is unrelated to accrual of the cause of action, discovery of the defect
or when harm occurs.5
Unlike a statute of limitations, a statute of repose eliminates the underlying substantive right of action,
not just the remedy available to the plaintiff, upon expiration of the period specified in the statute.6
Courts construe a cause of action rescinded by a statute of repose as if the right to sue never existed.
Statutes of repose are designed to encourage diligence in the prosecution of claims, eliminate the
potential of abuse from a stale claim, and foster certainty and finality in liability. 7
1 S. 95.11(3)(c), F.S.
2 Id.
3 McIntosh v. Progressive Design and Engineering, Inc., 166 So. 3d 823, 828-29 (Fla. 4th DCA 2015); Florida Dept. of
Transp. v. Capeletti Bros., Inc., 743 So. 2d 150, 152 (Fla. 3rd DCA 1999); Brady v. State Paving Corp., 693 SO. 2d 612,
613 (Fla. 4th DCA 1997).
4 Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056, 1058 (Fla. 3d DCA 2003).
5 Kush v. Lloyd, 616 So.2d 415 (Fla. 1992).
6 Beach v. Great Western Bank , 692 So.2d 146 (Fla. 1997)
7 Lamb By and Through Donaldson v. Volk swagenwerk Ak tiengesellschaft , 631 F. Supp. 1144, 1148 (S.D. Fla. 1986),
judgment aff'd, 835 F.2d 1369 (11th Cir. 1988).
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DATE: 2/5/2022
In addition to the four-year statute of limitations, there is a 10-year statute of repose for an action
founded on the design, planning, or construction of an improvement to real property. Such actions must
be commenced, regardless of the time the cause of action accrued, within 10 years after latest date
of:8
Actual possession by the owner;
Issuance of a certificate of occupancy;
Abandonment of construction if not completed; or
Completion or termination of the contract between the professional engineer, registered
architect, or licensed contractor and his or her employer.
Thus, the statute of repose may bar an action even though the injured party is unaware of the existence
of the cause of action.
Florida Building Code
The Florida Building Code (Building Code) is the statewide building code for all construction in the
state. The Florida Building Commission (Commission), housed within the Department of Business and
Professional Regulation (DBPR), implements the Building Code. The Commission reviews the
International Code Council’s I-Codes and the National Electric Code every three years to determine if it
needs to update the Building Code.9
Part IV of ch. 553, F.S., is known as the “Florida Building Codes Act,” which provides a mechanism for
the uniform adoption, updating, interpretation, and enforcement of a single, unified state building code
that must be applied, administered, and enforced uniformly and consistently from jurisdiction to
jurisdiction.10 The Building Code is adopted, updated, and interpreted by the Commission, and is
enforced by local governments.11
The main purpose of the Building Code is to regulate new construction or proposed modifications to
existing structures in order to give the occupants the highest level of safety and the least amount of
defects.12 The Building Code sets minimum standards for the design, construction, erection, alteration,
modification, repair, and demolition of buildings, structures, and facilities in the state.
It is the intent of the Legislature that local governments have the power to inspect all buildings,
structures, and facilities within their jurisdiction in protection of the public’s health, safety, and welfare. 13
Every local government must enforce the Building Code and issue building permits.14
It is unlawful for a person, firm, or corporation to construct, erect, alter, repair, secure, or demolish any
building without first obtaining a building permit from the local government or from such persons as
may, by resolution or regulation, be directed to issue such permit, upon the payment of reasonable fees
as set forth in a schedule of fees adopted by the enforcing agency. 15
A building permit is an official document or certificate issued by the local building official that authorizes
performance of a specific activity.16 A building official is a local government employee or a person
contracted by a government entity who supervises building code activities, including plans review,
8 S. 95.11(3)(c), F.S.
9 S. 553.73(7), F.S.
10 See s. 553.72(1), F.S.
11 Ss. 553.72, & 553.73, F.S.
12 Florida Building Commission, Advanced Florida Building Code Principals,
http://www.floridabuilding.org/ Upload/ Courses_trp/421-2-MA TE RIA L-Adv%20FL% 20Bldg%20Code% 20-
%20Course%20PDF%20version%207.0.pdf (last visited Feb. 4, 2022).
13 S. 553.72, F.S.
14 Ss. 125.01(1)(bb), 125.56(1), and 553.80(1), F.S.
15 See ss. 125.56(4)(a) and 553.79(1), F.S.
16 S. 468.603(2), F.S; S. 202 of the Seventh edition of the Florida Building Code (Buildi ng).
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DATE: 2/5/2022
enforcement, and inspection.17 Any construction work that requires a building permit also requires plan
reviews and inspections by the building official to ensure the work complies with the Building Code.18 A
permit for construction work that passes the required inspections and meets the requirements of the
permit receives a certificate of completion or is considered closed.19
After a new building or structure20 is completed and passes the required inspections and permit
requirements, the local building official will issue a certificate of occupancy. A new building or
structure may not be used or occupied until the local building official issues a certificate of occupancy
for the building or structure.21
Construction and Electrical Contractors
The Legislature has determined that it is “necessary in the interest of the public health, safety, and
welfare” to regulate the construction, electrical, and alarm system industry. 22
Construction contractors are either certified by or registered with the Construction Industry Licensing
Board (CILB). The CILB is housed in DBPR and consists of 18 members who are appointed by the
Governor and confirmed by the Senate. The CILB is responsible for licensing, regulating, and
disciplining certified construction contractors. Electrical contractors and alarm system contractors are
certified by or registered with the Electrical Contractors’ Licensing Board (ECLB). The ECLB is also
housed in DBPR consists of 11 members who are appointed by the Governor and confirmed by the
Senate. The ECLB is responsible for licensing, regulating, and disciplining certified electrical and alarm
system contractors.23
The CILB and the ECLB may take action24 against a certified contractor if they find the contractor is
guilty of violating the contractor’s practice act. Violations include:25
Abandoning a construction project;
Committing financial mismanagement that causes financial harm to a customer;
Failing to perform any statutory or legal obligation placed upon a licensee;
Falsely indicating that payment has been made for all subcontracted work, labor, and materials
which results in a financial loss to the owner, purchaser, or contractor;
Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of
adjudication, a crime in any jurisdiction which directly relates to the practice of contracting or the
ability to practice contracting; or
Proceeding on a job without obtaining applicable local building department permits and
inspections.
In addition to the CILB or ECLB disciplining a contractor, any licensee responsible for a material Florida
Building Code violation who failed to correct the violation within a reasonable time may be fined by a
17 S. 468.603(2), F.S.; S. 202 of the Seventh edition of the Florida Building Code (Building).
18 Ss. 107, 110.1, and 110.3 of the Seventh edition of the Florida Building (Building).
19 S. 553.79(17)(a), F.S.; section 5-110.4, Doug Wise, Closing Inactive & Excluded Building Permits, Palm Beach County
Planning, Zoning & Building Department, Building Division, http://discover.pbcgov.org/pzb/building/BuildingCodes/PBO-
126%20%E2%80%93%20Closing%20Inactive% 20and% 20Excluded%20Building%20Permits.pdf (last visited Feb. 3,
2022).
20 This includes an existing building or structure that is changing its occupancy class ification.
21 S. 111 of the Seventh edition of the Florida Building (Building).
22 s. 489.101, F.S.
23 See generally Ch. 489, F.S.
24 The CILB and the ECLB may place a contractor on probation, reprimand him or her, revoke or suspend the contractor’s
certificate or registration, or deny the issuance of a renewal certificate or registration. The CILB and the ECLB may also
require financial restitution to a consumer for financial harm directly related to a violation, require continuing education, or
assess costs associated with investigation and prosecution. Ss. 489.129(1), 489.533(1), F.S.
25 Ss. 455.227(1)(k), 489.129(1)(o), and 489.533(1), F.S.
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DATE: 2/5/2022
local jurisdiction at least $500 but no more than $5,000. A failure to pay the fine will result in a
suspension of the licensee’s ability to pull building permits.26
A “material violation” is a violation existing within a completed building, structure, or facility which may
reasonably result, or has resulted, in physical harm to a person or significant damage to the
performance of a building or its systems.27
Professional Engineers
The practice of engineering is regulated by ch. 471, F.S., and by the Florida Board of Professional
Engineers (FBPE). DBPR contracts with the Florida Engineers Management Corporation to provide the
administrative, investigative, and prosecutorial services for FBPE. 28
Architects
Chapter 481, Part I, F.S., governs the licensing and regulation of architects and related business
organizations. The Board of Architecture and Interior Design (Board) housed within DBPR. The Board
processes licenses and responds to consumer complaints and inquiries by monitoring activities and
compliance within the architecture and interior design industries.
Effect of the Bill
The bill revises the statute of limitations for actions founded on the design, planning, or construction of
an improvement to real property, which are subject to a four-year statute of limitations. The bill provides
that the four-year time period of the statute of limitations begins to run from 45 days after the date of:
Completion of the improvement (as defined in the bill); or
Abandonment of the improvement if the improvement is not completed.
The bill provides that if an action involves a latent defect the action must be commenced within seven
years after 45 days of the completion of the improvement or abandonment of the improvement if the
improvement is not completed. The bill repeals the provision that allowed the time to begin on date the
defect was discovered or should have reasonably been discovered with due diligence.
The bill also provides that if an action alleges a material violation and the person alleging the material
violation can show by clear and convincing evidence29 that the engineer, architect, or contractor or
his or her employer had actual knowledge of the material violation at the time of construction, the
action must be commenced within 15 years after 45 days of the completion of the improvement or
abandonment of the improvement if the improvement is not completed.
The bill repeals the 10-year statute of repose for an action founded on the design, planning, or
construction of an improvement to real property.
26 S. 553.781, F.S.
27 Id.
28 S. 471.038(3), F.S.
29 Clear and convincing is “an intermediate standard of proof between the ‘preponderance of the evidence’ standard used
in most civil cases, and the ‘beyond a reasonable doubt standard’ of criminal cases, requiring the evidence “[to] be of such
weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of t he
allegations sought to be established. Reid v. Estate of Sonder, 63 So.3d 7, 10 (Fla. 3rd DCA 2011).
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The bill provides definitions for the following terms:
“Completion of the improvement” means the issuance of the certificate of occupancy or
certificate of completion for the improvement, or closing of the building permit for the
improvement if the improvement is not required to have a certificate of occupancy or certificate
of completion.
“Material violation” means a violation of the Building Code that exists within a completed
building, structure, or facility which may reasonably result, or has resulted, in death or personal
injury to a person or significant damage to the building, structure, facility, its systems or to the
performance of a building, structure, facility, or its system.
“Performance” means that the building, structure, facility or system functions as it is intended
and is able to be used for its designed purpose.
“Significant damage” means a level of adverse impact to a building, structure, facility, or its
system that results or could reasonably result in economic damage or loss that exceeds the
common expectations, and the cost of restoring the damage or preventing such damage to the
building, structure, facility, or its system would equal or exceed 25 percent of the market value
of the building, structure, facility, or its system if built in accordance with the Building Code.
o It does not include Building Code violations that are cosmetic, minimal, or
inconsequential to the overall performance of a building, structure, facility, or its
systems.
The bill’s provisions apply to any action commenced on or after July 1, 2022, regardless of when the
cause of action accrued. Any action that would not have been barred prior to the bill’s enactment may
be commenced before July 1, 2023. However, such action is barred if the action is not commenced by
July 1, 2023, and the action is barred by the bill’s provisions.
B. SECTION DIRECTORY:
Section 1. Amends s. 95.11, F.S., relating to limitations other than for the recovery of real property.
Section 2. Providing applicability.
Section 3. Providing an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
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DATE: 2/5/2022
Unknown. It is unclear what the economic impact will be from revising the statute of limitations for
actions founded on the design, planning, or construction of an improvement to real property. While
some consumers may not be able to bring a claim based on the shortening of some time periods, other
consumers under different circumstances may be able to bring a claim based on the changes made to
the bill.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
Although the right to commence an action is a valid and protected property interest, 30 a plaintiff has
no vested right in a statute of repose in effect when his or her cause of action accrues. 31 Thus, the
time allowed for a suit may be either initially imposed or reduced by legislation enacted after the
cause of action arose, provided the litigant still has a reasonable time left in which to enforce his or
her right.32 The amendment to s. 95.11(3)(c), F.S., made in this bill may reduce the time allowed for
a suit after the cause of action arose, but the bill appears to give a litigant reasonable time to enforce
his or her right before being completely barred.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
30 See Polk Cty. BOCC v. Special Disability Trust Fund, 791 So. 2d 581, 583 (Fla. 1st DCA 2001).
31 Lamb By and Through Donaldson v. Volk swagenwerk Ak tiengesellschaft , 631 F. Supp. 1144 (S.D. Fla. 1986), judgment
aff'd, 835 F.2d 1369 (11th Cir. 1988).
32Bauld v. J.A. Jones Const. Co., 357 So. 2d 401, 403 (Fla. 1978), quoting Hart v. Bostick , 14 Fla. 162, 181 (1872); Walter
Denson & Son v. Nelson, 88 So. 2d 120 (Fla. 1956).
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DATE: 2/5/2022
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