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Residential Construction Defect

Residential and Commercial Construction Defects

The population growth in Central Florida in recent years has had major implications for the real estate market.  There has been a surge of commercial and residential real estate construction for single family housing, multi-family units and commercial businesses, bringing with it a myriad of possibilities for construction defects and subsequent litigation.  Construction defects are deficiencies in the building process which can result in costly damage to the property or can put the inhabitants of the property at risk for personal injury.  A construction defect can be a serious issue or it can be a matter of just not meeting the buyer’s expectations.  Lawsuits for construction defects can be a lengthy and costly process and multiple parties can be held liable for damages.  Restitution may include the costs of repairs, property devaluation, loss of use, court costs and attorney fees. In some cases there can be fines for gross negligence paid to the state and suspension of professional licenses.  A plaintiff can file a negligence claim if there were personal injuries as a direct result of the construction defect.  For negotiation, mediation and litigation of claims, a knowledgeable attorney is invaluable on your path to a successful resolution.  Attorney Benjamin Shane Boutty has been representing clients in construction and business law, for over 20 years.  He is well versed in all aspects of construction defect law, as he is a state certified contractor as well as a construction law attorney, a professor and has owned several construction companies.

What Constitutes a Construction Defect?

   Construction defects can be the result of design deficiencies, workmanship issues or material defects and often, they are a combination of all the following;

  • A design deficiency is the failing of the architects and engineers to follow State of Florida building codes in the design of a project, usually occurring by error or omission. An example may be a poorly designed roof that causes leaks and mold damage.
  • Workmanship issues can be either aesthetic concerns or they can be a structural integrity problems. An aesthetic issue can usually be repaired quite easily, whereas a structural integrity problem may not be easily seen until major damage has occurred, such as cracks in the foundation of the building or unstable load bearing walls.
  • Material deficiencies are defects that arise due to damaged materials or inferior products delivered by the manufacturer or the contractor using improper building materials.  Examples can be inferior dry wall that cracks, roofing shingles that leak or faulty electrical wiring that can result in a fire.

   Patent defects in a building are ones that are obvious upon inspection. Latent defects in construction are those that are not easily seen, which are usually more damaging and problematic. In the State of Florida, the statute of limitations for patent construction defects is four years after the defect is discovered, or ten years for latent construction defects.

Be Proactive in Communication and Documentation to Minimize Liability

   To prevent and mitigate construction defect liability, it is important for those professionals in the construction industry to be proactive by having a quality control measure in place.  This requires frequent and diligent review of plans and site assessments.  Frequently inspecting the project and keeping detailed records of the construction progress is needed evidence in the event of future litigation. Home buyers are entitled to a builder’s warranty with the purchase contract which establishes the buyer’s rights and protections.

   The Boutty Law Firm, in Winter Park, Florida, represents both plaintiffs and defendants in a wide range of construction defect disputes.  Our clients are property owners, material suppliers, architects, home owner associations, general contractors, developers and construction companies. If you are the owner of a property that is claiming damages or a business owner that is being named in a lawsuit, we can negotiate or mediate your dispute for an effective solution or be your advocate in court. Call the Boutty Law Firm for a consultation to discuss your unique situation.

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Home protection against hurricane damages

How to Dispute Insurance Coverage after Hurricane Damages

Hurricane Damages and Insurance Coverage

  During the months of June through November, we are immersed in a media blitz about storms and damages.  The State of Florida, which is surrounded by the Atlantic Ocean and the Gulf of Mexico, has a coastline of 8,436 miles, all of which are at high risk during a hurricane. Even those that don’t live on the coastline suffer heavy wind and water damages.  The report of a tropical storm or a hurricane brewing brings heightened anxiety levels and there can be immeasurable emotional wreckage following the storm. The history of hurricanes, such as hurricane Irma, hurricane Michael and the recent hurricane Dorian, caused devastating damages, for which there is major economic loss that may never be recovered. 

   The standard preparation for responsible homeowners and business owners, when a storm is approaching, is to do their best to secure loose items and trim or remove weak tree branches, especially around electric lines.  Creating a home inventory and reviewing your insurance coverage is imperative, if you need to claim damages.  Taking photos of your property prior to the storm, will adequately document the condition of your possessions.  When torrential rain, high tides or wind causes significant damages to your property, the results can be devastating.  Property owners are left to deal with roof and shingle damages, broken windows, flooding, moisture damages, destroyed porches, fallen trees and destruction of boats and other property.  Homes can be completely destroyed and become inhabitable.

   Insurance policies give us a false sense of security but insurance companies have an incentive to pay out as little as possible.  Your insurance policy is a contract between the insurer and the policyholder, in exchange for premiums.  This document determines the claims which the insurer is legally required to pay.  Following an event, an insurance adjuster will write a report of his subjective assessment of the damages.  This can result in a low estimate or a denial of the claim in total.  Some reasons that an insurance company will deny a claim or they may not pay for the damages in their entirety can be; policy exclusions, a missed payment can lapse your policy, coverage limit is reached but it’s not enough to cover damages, no documentation of damages, flood insurance needs to be a separate policy and/or pre-existing damage,   

   In addition to legitimate disputes between property owners and insurance companies, there are also a large number of questionable claims that need to be investigated and oftentimes, litigated in a civil court of law. While trying to deal with the trauma of your losses, insurance companies and property owners need to be aware of unscrupulous contractors that exploit customers during the confusion of a disaster.  Be wary of Assignment of Benefits fraud, which happens when you sign a deal that gives your contractor the right to bill your insurance company directly.

   The Boutty law firm will look out for your best interest and advocate on your behalf in a breach of contract dispute. You may be the property owner that feels your insurance company is unlawfully refusing to pay or you may be the insurance company that is disputing what appears to be a fraudulent claim. Or perhaps it is necessary to file for civil litigation regarding an untrustworthy contractor.  To learn more about how we can help you during this stressful time, schedule an appointment to discuss the details of your case.

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construction defect

Hidden Defects in Buildings

            Shelter is a fundamental human need.  Construction defects can render a shelter unsafe or outright collapse it, displacing families and bankrupting businesses.  Some defects are obvious: you wouldn’t buy a house with a collapsed roof.  But others, like wooden supports inside a wall, are invisible when purchasing or renting a building.  These latent (hidden) defects typically provide a stronger and longer basis for the purchaser to claim damages from the construction company.

            Florida law sets limits on how long purchasers have to file lawsuits regarding construction defects.  For most cases, purchasers have four years after occupying the building to take legal action.  This time limit is known as the statute of limitations.  But for latent defects, the four-year statute of limitations doesn’t start ticking until the time you discover, or could have reasonably discovered, the defect.  However, a ten-year statute of repose, starting from the time of occupancy, applies to all construction defects — even latent ones.  That means a family discovering a roof leak in their seven-year-old house only has three years to file against the construction company.  Since there is a grey area regarding what’s a discoverable defect and what’s a latent defect, it is best to contact an experienced construction law firm, like The Boutty Law Firm, as soon as the defect is discovered.

            When a construction company builds a building, it usually has prospective tenants or owners sign a contract to buy the building on completion.  This contract often contains clauses that specify how responsible the construction contractor is for defects.  The Levitz Furniture Company signed such a contract with Continental Equities, a construction company.  A year after Levitz moved into the new warehouse, the roof and a supporting wall collapsed, costing Levitz well over a million dollars in damages considering repair contact costs plus profits lost while waiting for repairs.

            Understandably, Levitz was ticked off when Continental tried to charge it $1.2 million for rent during the period of repair.  Levitz sued Continental for the damages and to get rid of the rent charge.  The case hinged over the contract Levitz signed, which said “Tenant, by taking possession thereof, will be deemed to have acknowledged that the demised premises, with all appurtenances, were in good order and condition when received by Tenant, latent defects excepted. [emphasis supplied]”  Since Levitz could not have reasonably discovered the hidden construction errors that led to the building’s eventual collapse, Florida’s Third District Court of Appeal ruled in Levitz’s favor.  In some cases, the contract will contradict Florida law, requiring an experienced construction law attorney to convince the court as to which should take precedence.

Purchasers of poorly constructed buildings require well-constructed legal arguments to recover thousands or millions of dollars in damages from repair costs, displacement costs, property loss, and resulting injuries.  For more information, contact The Boutty Law Firm at (407) 537-0543.

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Construction

5 Facts About Construction Liens in Florida (Part 2)

This blog is part 2 of our two-part series: 5 Facts About Construction Liens in Florida. Continue reading to understand what is needed to comply with construction lien laws in the state of Florida. Click here to read part 1:

4) Falsifying a Florida Lien Claim Could Cost You Jail Time

When filing a construction lien in Florida, it is important that all information associated with the lien is filed accurately and honestly. Exaggerating the claim on a construction lien is a 3rd degree felony in the state of Florida. Felonies are serious charges which can result in a prison sentence in some cases. Even without conviction, you may still face fines, legal fees, and other consequences if you don’t file your construction lien claim accurately.

Florida law does not permit construction liens to include charges that are not approved. Examples of unapproved charges include unauthorized work orders, unperformed work, or similar claims for damages. Taking care to avoid mistakes is essential when filing claims as it may be difficult to differentiate between accidental mistakes and willful exaggeration or fraud. Lien claimants in the state of Florida should not add costs, lien-related fees, interest, or attorney fees to construction liens.  Florida construction lien laws only permit claimants to include the actual permanently improved value of the property.

5) Construction Liens in Florida Have Deadlines

Florida construction liens are only valid for a specific period of time. Filing liens accurately and in a timely manner is critical to securing their value. Generally, a Florida construction lien foreclosure is due within one year from the date the lien is recorded. After this period, the lien expires, unless a lawsuit has been filed to foreclose the property and the lien. Under certain exceptions, the one year timeframe for the lien may be shortened by the property owner to 60 or 20 days from the date of recording. These exceptions include:

  • When a property owner gives a notice of contest of lien, the foreclosure period may be reduced to 60 days.
  • If the owner or party of interest files a lawsuit or complaint, the county clerk may issue a summons which can reduce the foreclosure period to 20 days.

Other Helpful Information to Know About Florida Construction Liens:

  • Florida law requires all construction liens to be notarized in order to be valid.
  • Florida construction liens do not require a legal property description, but they should include a basic description of the property for identification purposes.
  • In the event of payment, a construction lien may be cancelled by the lienor through a release of lien form or a waiver.  

If you are considering filing a construction lien lawsuit, a Florida construction attorney may be able to help. The Boutty Law firm is a Winter Park law firm that helps clients with construction liens as well as commercial and real estate law. For more information on how we can assist you, contact us today at (407) 537-0543.

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Construction Site

5 Facts About Construction Liens in Florida – (Part 1)

When working with a construction’s liens, knowing what laws and rules apply to your situation can make a big difference in securing a successful outcome. There are several state-issued guidelines that govern the notice, handling, and qualifications for construction liens. These five tips will help you understand what is needed to comply with construction lien laws in the state of Florida.

  1. Notice to the Owner is Mandatory

It is important to give notice to the owner after initially providing labor or materials. If this is not done, you may risk losing your construction’s liens rights. Any parties who do no contract directly with the property owner must serve a notice to owner with 45 days of providing labor and or materials to the project. The two exceptions to this rule are:

  • Individual workers who do not require a notice to owner
  • Engineers or other design professionals

Direct contractors may provide the property owner with a list of subcontractors and suppliers that are involved with the project. The contractor is required to provide this information within 10 days. The following rules apply to issuing the notice:

  • If hired by a general contractor, the notice should be sent to the property owner
  • If the work is hired by a subcontractor, the notice should be sent to the property owner and the general contractor.
  • If hired by a sub-contractor, the notice should be sent to the property owner, general contractor, and the sub-contractor.
  • If you are unaware of the specific parties, Florida law will allow you to reply on specifically publicly available information.
  • When sending the notice to the owner, it must be sent via certified mail with a return receipt requested.
  • A Construction’s Lien Must be Filed Within 90 Days of Last Labor

In the state of Florida, construction’s liens must be recorded within 90 days of the last labor completed or materials provided. The three-month period begins when the majority of the work is complete, and corrections to work or warranty work cannot be used towards establishing the deadline. For rental equipment companies, the last date of use is the last date that the equipment was on site and available to the designated parties.

3)  You Must Qualify for Lien Rights in the State of Florida

Lien rights are not automatically granted to all citizens in the state of Florida. Generally, the state grants lien rights to contractors, subcontractors, material suppliers, rental equipment companies, manual laborers, and other professionals. You are not required to have a written contract for a construction’s lien. The contract may be oral, written, or implied.

Those who do not qualify for construction liens in Florida include:

  • Sub sub-contractors
  • Suppliers who supply to other suppliers
  • Suppliers to sub sub-contractors
  • Laborers who do not meet license requirements in the state of Florida
  • Maintenance workers

The Boutty Law firm is a Winter Park law firm that helps clients with construction liens, as well as commercial and real estate law. For more information, contact us today at (407) 537-0543.

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