On November 2, 2021, the Florida Legislature began proposing amendments to Florida’s construction defect statute of limitations and repose under 2022 Florida Senate Bill No. 736 (“SB 736”). “The purpose of a statute of repose is to cut off the right of action after a specified time measured from the delivery of a product or the completion of work, regardless of the time of the accrual of the cause of action or the notice of the invasion of a legal right.” According to the Florida Legislature, “the [new] bill provides for a [four]-year limitations period for bringing a construction defect action, whether the action is based on a patent or obvious defect or a latent or hidden defect. The statutory language authorizing a [ten]-year statute of repose for latent defects is repealed.”

Currently, under Florida Statute 95.11(3)(c)—the statute SB 736 seeks to rewrite—the statute of repose begins to run based on the “time of commencement,” which includes the following: (1) the date of actual possession by the owner, (2) the date of issuance of a certificate of occupancy, (3) the date of abandonment of construction if not completed, or (4) the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever is latest. Under the new bill, “whichever is latest” in subsection (4) is amended to read: “whichever date is earliest,” shortening the period of time to bring the action.

The statute of repose under the proposed bill depends on what category of “improvement” the cause of action falls under. This proposed subsection essentially re-writes Fla. Stat. 95.11 as it relates to the limitations period in construction defect litigation, titled “ACTIONS RELATING TO AN IMPROVEMENT TO REAL PROPERTY.” The subsection provides four categories of “improvement to real property”:

“Category 1 improvement includes a detached single family home, including a manufactured home, or a standalone building or structure, intended for use by a single business, occupant, or owner, not exceeding three stories in height and related improvements to such homes, buildings, or structures.

Category 2 improvement includes a single-family dwelling unit not exceeding three stories in height which is constructed in a series or group of attached units or a commercial or nonresidential building not exceeding three stories in height and related improvements to such dwellings, buildings, or structures.

Category 3 improvement includes commercial or residential buildings or structures of four or more stories in height and related improvements to such buildings or structures.

Category 4 improvement includes an improvement that is not a category 1 improvement, category 2 improvement, or category 3 improvement.”

The four-year statue of limitations remains as to actions founded “on the design, planning, or construction of an improvement to real property.” As to the statute of repose, under category 1, the time period is shortened to five (5) years after the “time of commencement” (discussed above); category 2 allows for seven (7) years; category 3 calls for ten (10) years; and category 4 permits ten (10) years.

The bill includes a one-year limited extension for counterclaims, cross-claims, and third-party claims related to an action that may otherwise be time-barred, as long as the pleading related to such claims was served within one year under the current statute. It also expressly states that if a certificate of occupancy or completion has been issued by the relevant authority, any warranty work, correction work, or repair of defects to be completed does not extend the “time of commencement.”

If the bill is signed into law, it will apply to any action filed on or after July 1, 2022, regardless of when the cause of action accrued. However, if the current statute of repose permits filing suit, a party may do so before July 1, 2023. On July 1, 2023, any action not commenced that is time barred by the new bill is barred.