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Don't Let the Florida Statute of Repose Catch Your Association by Surprise

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As of January 1, 2024, was the temporary or final certificate of occupancy for any of your buildings (condos, townhomes/duplexes administered by an HOA, HOA clubhouse, etc.) issued more than six years prior but less than ten years prior? Or, as of January 1, 2024, were any improvements at your development (paving, drainage structures, tennis courts, etc.) completed more than six years prior but less than ten years prior? If so, pay close attention.

The Florida Legislature in the 2023 legislative session reduced the statute of repose in Florida from ten to seven years, but with a limited savings clause for associations who act by July 1, 2024. A statute of repose is an artificial legislatively-created outside boundary for the pursuit of latent construction defects in a building or improvement. Here is the current statute with an important footnote:

95.11 Limitations other than for the recovery of real property.—Actions other than for recovery of real property shall be commenced as follows:
1(3) WITHIN FOUR YEARS.—
2(b) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date the authority having jurisdiction issues a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion, or the date of abandonment of construction if not completed, whichever date is earliest; except 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. In any event, the action must be commenced within 7 years after the date the authority having jurisdiction issues a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion, or the date of abandonment of construction if not completed, whichever date is earliest. . . . With respect to actions founded on the design, planning, or construction of an improvement to real property, if such construction is performed pursuant to a duly issued building permit and if the authority having jurisdiction has issued a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion, then as to the construction which is within the scope of such building permit and certificate, 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. . . . Notwithstanding any provision of this section to the contrary, if the improvement to real property consists of the design, planning, or construction of multiple buildings, each building must be considered its own improvement for purposes of determining the limitations period set forth in this paragraph.
. . .
2Note.—Section 3, ch. 2023-22, provides that “[t]he amendments to s. 95.11(3)(c), Florida Statutes, made by this act apply to any action commenced on or after the effective date of this act, regardless of when the cause of action accrued, except that any action that would not have been barred under s. 95.11(3)(c), Florida Statutes, before the amendments made by this act must be commenced on or before July 1, 2024. If the action is not commenced by July 1, 2024, and is barred by the amendments to s. 95.11 (3)(c), Florida Statutes, made by this act, then the action is barred.” Paragraph (3)(c) was redesignated as paragraph (3)(b) by s. 3, ch. 2023-15.

As of January 1, 2024, if the temporary or final certificates of occupancy were issued for any of your buildings more than nine years prior but less than ten years prior, you may need to file an action very quickly to preserve your claims. Similarly, as of January 1, 2024, if any of the improvements at your development were completed more than nine years prior but less than ten years prior, you may need to file an action very quickly to preserve your claims. As of January 1, 2024, if the temporary or final certificates of occupancy were issued for any of your buildings more than six years prior but less than nine years prior, you risk being time barred to pursue such claims if you fail to file an action by July 1, 2024. Similarly, as of January 1, 2024, if any of the improvements at your development were completed more than six years prior but less than nine years prior, you risk being time barred to pursue such claims if you fail to file an action by July 1, 2024.

Confused? Seek advice from one of our construction claims’ attorneys.