Florida's New Construction Defect Statute Impacts Mold Claims

Originally published April 2004

In May 2003, Chapter 558 became effective in Florida. The statute requires that a residential claimant follow the procedures in the statute to notify the contractor and other responsible parties of defective construction and provides the contractor a method of resolving the construction defect dispute prior to litigation; a right to cure. Similar to California's right to cure statute, Florida's statute is an attempt to reduce the case load in the court system. One key difference from the California statute is that the contractor only has five business days after receipt of the initial notice to conduct an inspection and a total of 25 calendar days to serve a written response to the claim. This is a very short time to coordinate the appropriate inspections, determine the cause of the problem and propose a solution.

The claimant is barred from filing a lawsuit during the right to cure period and any lawsuit filed without complying with the statute may be stayed pending the inspection/cure period. Although the statute does not apply to actions asserting a claim for personal injuries arising out of the alleged construction defect, many personal injury claimants are serving the 558 notice to avoid a potential defense or delay.

The new Florida statute is beginning to impact mold claims. Plaintiffs' attorneys and homeowners are becoming aware of the statute and are serving notices under the statute asserting that defective construction and resulting mold growth is causing damage and claiming personal injury. The statute requires that the notice "describe the claim in reasonable detail sufficient to determine the general nature of each alleged defect and a description of the damage or loss resulting from the defect, if known." Section 558.004(1). Many of the claims have been simple statements of problems with no detail about the defects nor damage. It is very difficult for a contractor to coordinate the appropriate inspection or respond to a claim without sufficient information as to the source of the problem. Mold won't grow without a water source, either liquid water or water vapor. A claim of mold growth in a residence can be due to high humidity, water intrusion, leaky pipes, inadequate maintenance and many other sources or combination of sources. Mold claims can be very difficult to diagnose because the source may be hidden or even far removed from the area of mold growth. Therefore it is imperative that the...