558 Notice Requirements
Navigating the world of construction defects and 558 notice requirements can be tricky for both plaintiffs and defendants. Florida Statute 558 governs the rights and obligations claimants must follow prior to filing a construction defect lawsuit against the parties responsible for the original construction. Generally, the statute provides that a claimant must provide the contractors with notice of the defects prior to the claimant proceeding with the filing of a lawsuit. In addition, the claimant must provide the contractors with access to the property to inspect the defective conditions, and in turn, the contractors must respond to the claimant’s notice.
What Is Considered a Construction Defect?
According to Florida Statue 558, a “construction defect,” is any deficiency in or arising out of the construction of a property that resulted from the installation of defective material, the work resulted in violation of building codes, and/or the design of the property was defective or deviates from the standards of the trade.
When Is a 558 Notice Required?
The statute provides clear instructions on when and how to serve a 558 Notice. Typically, a 558 Notice is required prior to filing a construction defect lawsuit. However, what happens if, in the middle of an ongoing construction defect lawsuit, additional defects, which may be related to or caused by the originally noticed defects arise? Is the process required to start from the beginning?
To add further complications, the Statue provides that if an additional claim is “reasonably related” or “caused by” previously noticed defects, the additional claim can be included in the proceeding with the original notice. This indicates that defects or causes that are later discovered can be included in the lawsuit without having to go through the cost of sending out new notices and scheduling new inspections and basically starting from the beginning. Stated simply, it appears that the Statute permits for claims to be alleged without filing a 558 notice if the claims are reasonably related to or caused by the previously noticed defects. However, the definition of “reasonably related” is ambiguous, and there is little case law on this subject.
This potentially creates additional ambiguity with regards to the 558 statute. There has been no case law that addresses this issue so it is likely to remain a point of contention for litigants to argue on both sides. However, it is clear that if the alleged claim is reasonably related to or caused by a previous claim, then the claimant should be permitted to proceed with those subsequent claims without having to restart the entire 558 process from the beginning – which would certainly make contractors and their counsel happy, but would create an extreme financial burden on the claimants, beyond the defects and costs they are already dealing with.
According to the statute, if a claimant fails to comply with the notice requirements of 558, the defendant may file a motion to stay the action. The court is required to stay the action until the claimant has complied with the notice requirements unless staying the case is futile. This is the only remedy the Statute provides when dealing with a defective notice.
The 558 statute has various components and requirements. Prior to proceeding with a construction defect claim you should consult with experienced legal counsel such as the construction law attorneys at Haber Slade in order to assist you in navigating through those requirements.
Frank Soto is a partner with the Miami law firm of Haber Slade. He heads the firm’s Construction Law Department. He concentrates his practice in the areas of construction litigation and real estate litigation. Mr. Soto has represented owners, contractors, sub-contractors, mortgage lenders, and other financial institutions in various construction and breach of contract disputes in State and Federal Courts throughout the State of Florida.