Unlicensed Contractors: Statute of Limitations Defense
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Unlicensed contracting is a huge problem in Florida, and the Florida Legislature and Courts have fashioned a host of penalties. See Penalties for Unlicensed Contracting in Florida. However, according to a recent opinion from Florida’s Fifth District Court of Appeals, the loss of a “statute of limitations defense” is not one of those penalties for unlicensed contractors. See Brock v. Garner Window & Door Sales, Inc., 5D14-1472, 2016 WL 830452 (Fla. 5th DCA Mar. 4, 2016).
Generally, an unlicensed contractor can assert a statute of limitations defense. Id. at n.2 (dissent)(“I agree with the majority that nothing in section 489.128, Florida Statutes, or Earth Trades, Inc., would preclude an unlicensed contractor from asserting a statute of limitations defense.”) In particular, the Brock court held that an unlicensed contractor can invoke the benefit of the limitations set forth in Section 95.11(3)(c), Florida Statutes. Section 95.11(3)(c) provides a 4-year limitation for actions “founded on the construction of an improvement to real property,” which is shorter than the five-year limitation on written contracts generally.
In Brock, the appellant made two arguments as to why the unlicensed contractor should be precluded from raising the Section 95.11(3)(c) 4-year limitation defense. First, the language of Section 95.11(3)(c) includes the term “licensed contractor.” That Section provides a four year statute of limitations period for:
An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; 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.
- 95.11(3)(c), Fla. Stat. (emphasis added). The statute further provides:
In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
Id. (emphasis added).
The majority concluded that the reference to “licensed contractor” is contained within the portion of the statute that addresses when the statute commences to run, not the types of actions to which it applies. Brock. In addition, the majority found that the “licensed contractor” language was not implicated at all because the event triggering the commencement of the running of the statute in that case was the discovery of the latent defect—not the completion of the contract—and the licensed contractor language is not found within the latent defect portion of the statute. For these reasons, the Brock majority concluded that an unlicensed contractor could invoke the Section 95.11(3)(c) 4-year limitation to an action founded on latent construction defects.
In a dissenting opinion, Justice Berger presented an alternative interpretation of the use of “licensed contractor” language in Section 95.11(3)(c):
The language of section 95.11(3)(c) is clear and unambiguous and twice references “licensed contractor[s].” In my view, the inclusion of the term “licensed” indicates that the Legislature intended for section 95.11(3)(c) to apply only to actions “founded on the design, planning, or construction of an improvement to real property” if that design, planning or construction was performed by a licensed contractor.
Brock. The dissent concluded that the Legislature intended for only “licensed” contractors to obtain the benefit of the 4-year limitation because it included the term “licensed contractor” in two particular parts of the Section. “Therefore, because the Legislature limited section 95.11(3)(c) to licensed contractors, construction performed by unlicensed contractors would be excluded from the four-year limitations period.” Id. To hold otherwise would render the statute’s reference to “licensed contractor[s]” meaningless. Id. Nevertheless, this is merely the dissenting opinion and the controlling authority for courts within the Fifth District is that unlicensed contractors can use the 4-year limitation.
The appellant asserted a second argument: that unlicensed contractors cannot assert statutory defenses under the dictates of Section 489.128, Florida Statutes, and the holding of Earth Trades, Inc. v. T & G Corp., 108 So.3d 580 (Fla. 2013). This argument was rejected by the Brock court. The court explained that Section 489.128 and Earth Trades hold only that an unlicensed contractor could not enforce a contract, and asserting a statutory defense is not the same as enforcing a contract. Therefore, Section 489.128 and Earth Trades do not preclude an unlicensed contractor “from asserting statutory defenses such as the statute of limitations.” Brock.
Note: Brock v. Garner Windows has not been released for publication in the permanent law reports and, thus, it is subject to revision or withdrawal until it is released.