“Statute of Limitations for Building Problems”

Luxury Homes and Estates in Florida

The Florida Legislature has enacted statutes which limit the time that a party may bring a lawsuit to recover damages related to construction. Specifically, 95.11(c) applies to any action founded on the design, planning, or construction of an improvement to real property. The statute requires that any claim for defective construction must be initiated within four (4) years of the date an owner takes actual possession, is issued a certificate of occupancy or the date of the completion of a contract, whichever date last occurs.

However, the statute goes on to state that if there is a “latent defect” the time runs from the date the defect is discovered or should have been discovered.*

Thus, if a problem with the construction of a home or building is discovered four (4) years after the owner takes possession a lawsuit is barred unless the defect can be described as “latent”.

A latent defect is defined as one that is not apparent from the use of one’s ordinary senses.

Latent defects are generally considered to be hidden or concealed defects which are not readily discoverable. Alexander v. Sun Coast Builder, Inc., 837 So.2d 1056.

The determination of whether or not a defect is latent or not is a factual one to be determined on a case by case basis. Caselaw offers some guidance. In Hava Tampa Corporation v. McElvy, 417 So.2d 703, the court held that a roof leak is open and obvious and it did not matter whether the owner knew of the specific cause of the roof leak. Since it was obvious that the roof leaked the owner must initiate his lawsuit within four (4) years otherwise the claim would be barred.

In the case of Lakes of Meadow Village Homes Condominium v. Arvida, 714 So.2d 1120, the court considered building defects latent where they were discovered only after Hurricane Andrew damaged the building and exposed that the roof truss system lacked adequate bracing. The missing or improperly placed reinforcements on the bracings were concealed from view by the roof itself. The court allowed the lawsuit even though over four (4) years had past since the owner took possession of the building.

An owner upon discovering a defect with his building should immediately initiate an action to avoid the statute of limitations defense.

*In no event will an action be initiated 15 years after the date of actual possession by the owner, date of issuance of a certificate of occupancy, or the date of completion of a contract, whichever date is latest.

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Houston Short grew up in the Central Florida area, and continues to reside in Orlando with his family. He provides representation in arbitration actions for the American Arbitration Association and engages in alternative dispute resolutions including mediation both binding and non-binding arbitration, and settlement negotiations. He is an active member of the American Arbitration Association Panel Review Committee, the Orange County Bar Association, and the Florida Bar. He graduated from Florida State University in 1984 with a bachelors of science degree (cum laude) and received his juris doctor from the University of Florida in 1987 (with honors). Houston co-authored, "The Constitutionality of the Legislatures Mandate to Sever Counterclaims in Mortgage Foreclosure Action," the Real Property, Probate and Trust Law Section, The Florida Bar.