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If you found defects in your commercial building, a 558 notice is generally the first legal step Florida requires before you can sue the contractor, subcontractor, supplier, or design professional behind the work. Chapter 558 of the Florida Statutes sets a mandatory pre-suit process. Skip it, and the other side can ask the court to stay your case until you comply.
What Is a Chapter 558 Notice, and Does It Cover Commercial Buildings?
A Chapter 558 notice is a written notice of claim that a property owner serves at least 60 days before filing suit over a construction defect. Section 558.002 defines a claimant as a property owner and does not separate residential from commercial property. A commercial owner is covered.
Found defects and not sure what to send first? Talk with a Jimerson Birr business litigation attorney before you file anything.
The chapter applies to defects that arise after the building or improvement is completed, when the agreement for the improvement was made after October 1, 2009, unless the parties agreed in writing to opt out under section 558.005. Notice is not required for a project that has not reached completion. It covers claims for damage to property. Personal injury claims fall outside it, and they raise different liability questions at commercial properties.
Chapter 558 is the gate you pass through on the way to construction litigation, not a substitute for it.
When Must You Serve the Notice, and What Must It Say?
Serve the notice at least 60 days before you file suit, and make it specific. Under section 558.004, the notice must refer to Chapter 558 and describe each alleged defect in reasonable detail, with enough location information for the other side to find it without undue burden.
A sound notice does four things:
- Names Chapter 558 and the parties you are putting on notice.
- Describes each defect and its location, based on at least a visual inspection.
- Does not wait on destructive testing, which you have no obligation to perform before serving notice.
- Goes out by a recognized method: certified mail with a postal record of delivery or attempted delivery, hand delivery, or a courier with written evidence of delivery.
Keep proof of service, such as the certified mail receipt or the courier record, because the 60 days run from the date of service and the other side may test it.
Serve each party your claim targets. Design professionals can carry contract protections and statutory limits on personal liability, so read their contracts first.
The statute asks you to try to serve notice within 15 days after discovering the defect, but missing that target does not bar your claim. You may amend the list to add defects, but each new defect goes through the same notice process. Trial is limited to noticed defects you complied on, plus defects reasonably related to or caused by them.
What Happens After You Serve the Notice?
The parties you notified get time to inspect, bring in other responsible parties, and respond. Within 45 days after service, each must offer to repair, offer money, combine the two, dispute the claim, or state that its insurer will determine any payment within 30 days after the insurer is notified of the claim.
| What Happens | Deadline |
|---|---|
| Responding party may inspect the property | Within 30 days after service |
| Noticed party may forward the notice to others it believes are responsible | Within 10 days after service |
| Forwarded parties respond in writing | Within 15 days after service of the forwarded notice |
| Each noticed party serves its written response | Within 45 days after service |
| You accept or reject a timely offer in writing | Within 45 days after receiving it |
| Either side requests plans, photos, expert reports, and similar records by a written request citing section 558.004(15) | Exchange due within 30 days after the request |
Associations representing more than 20 parcels wait 120 days before suit and get longer response deadlines, so the table above is for other owners.
If the other side disputes the claim or misses the 45-day deadline, you may sue without further notice. If you accept an offer and the other side repairs or pays as agreed, you are barred from suing on the claim described in the notice. If the other side fails to repair or pay as agreed, you may proceed without further notice. The claim that follows can rest on a breach of contract, a code violation, or a failure to meet accepted trade standards, and it moves into business litigation in court.
Offers made in this process are not admissions of liability and are not admissible in an action under the chapter. You may also make necessary emergency repairs to protect health, safety, and welfare. Before you accept a repair offer, compare it with the damages a property owner can recover for construction defects. Weighing an offer against suit is a cost and benefit review, which the firm describes on its construction management and defect litigation page.
When the party you notify sends a copy of your notice to its insurer, that copy is not a claim for insurance purposes unless the policy says otherwise. Which coverage responds is a separate question about which insurance policy applies, and the firm has also covered whether an insurer must defend after a Chapter 558 notice. Attorney James “Joby” Birr III has written about Chapter 558 for this blog.
What Happens If You Sue Without Serving the Notice?
On a timely motion, the court must stay your case without prejudice, and it cannot proceed until you comply with the chapter. Section 558.003 directs a stay, not a dismissal. Under section 558.004(7), the court must also stay a suit filed before you accept or reject a timely offer in writing.
Does a Chapter 558 Notice Stop the Statute of Limitations Clock?
It pauses the statute of limitations but not the statute of repose. Under section 558.004(10), the notice tolls the limitations period until the later of 90 days after service or 30 days after the end of a repair or payment period you accepted. Section 558.004(1)(d) says the notice does not toll any statute of repose.
Florida’s construction statute, section 95.11(3)(b), gives you four years. The clock starts on the earliest of the temporary certificate of occupancy, the certificate of occupancy, the certificate of completion, or abandonment of construction. For a latent defect, time runs from when you discovered it or should have with due diligence.
In any event, the action must start within seven years of that same date, whenever you discover the defect. Pull your temporary certificate of occupancy, certificate of occupancy, and certificate of completion dates before anything else.
What Should You Check Before You Serve a Chapter 558 Notice?
Five facts change what you send, to whom, and by when:
- Certificate dates. The earliest of your temporary certificate of occupancy, certificate of occupancy, or certificate of completion starts the seven-year clock, and the four-year clock too unless the defect is latent.
- Your contract terms. Look for a written opt-out or a different pre-suit process, and note the date the agreement for the improvement was made.
- Everyone who touched the work. The contractor, subcontractors, suppliers, and design professionals may each need notice.
- Discovery date and type of loss. Latent defects follow a discovery rule, and personal injury claims sit outside the chapter.
- Insurance conditions. Chapter 558 does not excuse the party you notify from the conditions in its own liability policy, and your own policies may carry notice terms too.
These facts decide which deadlines apply and who must receive notice. An attorney needs to review them before you serve anything.
Not sure your dates and contract terms line up? Have a Jimerson Birr business litigation attorney review them before you serve notice.
How Can Jimerson Birr Help With Defects in Your Commercial Building?
Found defects in your commercial building? Jimerson Birr’s business litigation attorneys handle defective construction claims, including structural deficiencies, code violations, and substandard workmanship. Bring us your dates and documents, and we will explain what they mean for your claim. Call (904) 389-0050 or request a free consultation. A Chapter 558 notice does not pause Florida’s seven-year repose period, so each month of delay counts against you.