Construction Industry Legal Blog

Warranties are a valuable part of a construction contract. A multi-year warranty is more valuable than a 1-year warranty. A contractor’s offer to provide a multi-year warranty may induce an owner to select that contractor and enter into the contract. Often, multi-year warranties are included in the written contract, or separate written warranty policies are provided at the end of the project. However, not all construction contracts are written, and contractors don’t always provide a written policy at the end of a project. This raises the question: are oral multi-year warranties enforceable? They may not be. The Statute of Frauds may bar their enforcement.

Resolution of construction and design defects in Florida are governed by Chapter 558 of the Florida Statutes. Unless parties have agreed to opt-out of the requirements of Chapter 558, its statutory provisions apply to all commercial and residential construction projects. The Governor recently approved changes to Florida Statute Chapter 558 on June 16, 2015. These changes take effect on October 1, 2015. Chapter no. 2015-165 and Final Bill analysis.

“Change is inevitable – except from a vending machine”—Robert C. Gallagher. The history of human civilization has taught us that change through new land development is constant and a never ending occurrence. Sure, land development ebbs and flows with economic cycles, but new construction can always be found somewhere at any given time. With land development comes the need for new and expanded infrastructure, involving government action at some level. Private citizens, whose property is in the crosshairs of government development plans, will receive notice that all or part of their property is subject to governmental taking — the proverbial offer that you can’t refuse. Yet, thanks to the U.S. Constitution, private citizens are not without rights here. This blog post is part I in a series of posts to assist private property owners with protecting their property interests, maximizing just compensation and ensuring entitlement to attorney’s fees in eminent domain actions and government takings.

The Florida Legislature’s 2015 Regular Session is complete. This blog addresses the bills, which passed, that we think have the greatest impact on the construction industry. We provide the highlights for each bill, in no particular order:

Contractors, developers, owners, and anyone involved in the construction and design industry must be aware of the time periods for bringing suit to enforce construction and design related claims. Florida law has various limitations periods for filing of lawsuits. 95.11 Florida Statutes. These time periods are referred to as the statutes of limitation. If a lawsuit is not filed during the requisite time periods, the claim is deemed to be time barred.

Many Florida contractors and license holders have a general understanding of the Florida Construction Industry Licensing Board (“CILB”), but like many quasi-judicial bodies, it can remain a mystery to those who practice and appear in front of the CILB. This post will cover some specific information regarding applications for license holders to qualify an additional business entity.

In construction defect claims, various insurance policies are often implicated. These policies can span many years, so it is critical to determine what policy or policies may provide insurance coverage for the damages that ensue. The insurance policies at play, for general contractors, subcontractors and suppliers, are typically comprehensive general liability policies. Assuming these parties have such policies, the question then becomes what policies apply and do the policies cover the claims.

By: James O. Birr, III

Florida Statute Chapter 558 was adopted to serve as an alternative method to resolve construction and design disputes in order to reduce the need for litigation, while protecting the rights of property owners. While the nuances of Florida Statute Chapter 558 are outside the focus of this post, there are some proposed changes making their way through the Florida legislature. See House Bill 87 and Senate Bill 418. These changes include specific information to be included in the notice of claim, frivolous claims, sanctions, and the exchange of documents.

In Florida, unlicensed contracting is a crime. Florida Statutes provide special civil remedies for those harmed by unlicensed contracting. For instance, Section 768.0425 provides that a consumer harmed by an unlicensed contractor is entitled to treble damages and attorney’s fees. These are extreme remedies intended to punish unlicensed contractors. We typically think of a homeowner as the “consumer” in this context. However, a general contractor is likewise entitled to the civil remedies of §768.0425 if the contractor is harmed by its unlicensed subcontractor. Home Construction Management, LLC v. Comet, Inc., 125 So.3d 221 (Fla. 4th DCA 2013).

By: James O. Birr, III

One of the most important provisions in any construction contract, or any contract for that matter, is the payment provision. Before signing the contract, parties must understand how and when they get paid and, in turn, when they are required to make payment. One way parties, particularly contractors, attempt to handle payment uncertainties is to include contingent payment provisions or time of payment provisions in their construction contracts. These provisions are commonly referred to as pay-if-paid and pay-when-paid provisions and are enforceable in Florida. While these provisions sound the same, they operate very differently and, as such, may have unintended consequences for the parties.