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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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11 Unlicensed “Contractors” Arrested in Sting

An undercover sting operation targeting unlicensed contractors and contractors without workers’ compensation insurance in Manatee County recently resulted in 11 arrests.

The three-day operation was a multi-agency effort that included the Florida Division of Insurance Fraud, the Department of Business & Professional Regulation, the Manatee County Sheriff’s Office, Holmes Police Department and Manatee County Code Enforcement.

The 11 men were each charged with working as an unlicensed contractor and working without workers’ compensation. All 11 were also fined by code enforcement and issued a cease-and-desist order.

Investigators set up the operation at an uninhabited home in Manatee County and contractors were called to perform jobs at the home.

If convicted, the defendants all face up to five years prison for each workers’ compensation charge. For the unlicensed-contractor charge, they face an additional year in prison if they are a first-time offender, or five years for repeat offenders.

Anyone with information about suspected insurance fraud should call 1-800-378-0445. Tipsters can remain anonymous and be eligible for up to a $25,000 reward through the Department of Financial Service’s Anti-Fraud Reward Program.

Professional licenses can be verified online at www.myfloridalicense.com.

Read the full story at: https://www.bradenton.com/2015/02/14/5635584/11-arrested-in-undercover-sting.html 

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Unlicensed Contractors Beware!

Florida Statute 489.128 provides that “contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.”  Furthermore, “no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto.”

The Supreme Court of Florida solidified prior case law and affirmed Florida Statute 489.128 by ruling that an unlicensed contractor cannot sue for breach of contract, even when he has been wronged and even when the party against whom he is seeking relief knew of his unlicensed status.

In Earth Trades, Inc. v. T&G Corp., the Defendant, a general contractor, subcontracted with the Plaintiff, who was unlicensed under Florida law at the time, to perform work on a parking garage. After a dispute, the Plaintiff sued the Defendant for breach of contract. The Defendant then counterclaimed for breach of contract. During litigation, the Defendant argued that because the Plaintiff was unlicensed, its breach of contract claim was barred under Fla. Stat. 489.128.

Upholding the 5th District Court of Appeal’s ruling in the case, the Florida Supreme Court stated “…the Legislature has imposed a substantial penalty on the unlicensed contractor as the wrongdoer with regard to a construction contract. Under the amended section 489.128, the unlicensed contractor has no rights or remedies for the enforcement of the contract.” The Court went on to state that a party’s knowledge that a contractor or subcontractor does not hold the state-required license to perform the construction work of the contract is legally insufficient to establish the defense that the parties stand in pari delicto (both parties are wrongdoers).

Unlicensed contracting is a crime for which a first offense is a first-degree misdemeanor and a second is a third-degree felony. § 489.127(2)a-b, Fla. Stat. (2013). In addition, DBPR may impose a fine of $10,000 on any person found guilty of unlicensed contracting. § 489.13(3), Fla. Stat. (2013).

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