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It's The Law: Contractor Must Be Given Opportunity To Repair Before Suit

Q: I hired a contractor to do some remodeling and add a room to my home. There are a lot of problems with the construction and I want to sue. Somebody told me I have to give the contractor notice and an opportunity to fix the defects before we sue. Is that correct?

A: Before suing for breach of contract, you generally need to give the other party notice of breach and an opportunity to correct the breach. Contract language and circumstances can affect the timing and requirements, failure to allow a breaching party to correct the defect in many cases may impact your ability to recover damages.

A contracting party is entitled to the benefit of the bargain. In other words, you get what the contract provides. If the other party fails to perform, you are entitled to the costs of correcting the performance. If you do not give the other party an opportunity to correct, the other party can claim it could have corrected much cheaper if it had been given a chance. That can reduce the damages you recover.

In 2003, Florida adopted a rather complex statutory procedure for pre-suit notice and opportunity to repair in construction defect cases. Chapter 558 of Florida Statutes provides mandatory pre-suit notice requirements. Timeframes described in this article are for projects of less than 20 units. Longer times apply when associations are involved with 20 units or more.

Under the statute, you must give at least 60 days notice to any contractor, subcontractor, supplier or design professional of your claim before filing suit. The notice of claim must reasonably describe each alleged defect and the damage or loss resulting from the defect, if known.

The person receiving the claim has 30 days in which to perform a reasonable inspection of the property. Reasonable access to the property must be provided and inspections must be coordinated to minimize the number of inspections. Inspection may even include destructive testing if needed to determine the nature and cause of the defects.

If destructive testing is proposed, notice must be given to the property owner including estimated and anticipated damage and repair, financial responsibility offered for covering the costs of repairs and the identity of the person who is testing. If the property owner objects to the person selected to do the testing, the property owner must provide the name of 3 acceptable and qualified persons from which selection can be made to do the testing. The testing must then be coordinated and representatives of both parties may be present to observe the testing.

The contractor receiving notice of the claim may serve a copy of the notice on any other subcontractor, contractor, supplier or design professional whom it reasonably believes is responsible for any defect. Within 15 days after receiving a copy of the claim, the additional contractor or design professional must serve a written response to the person who forwarded a copy of the notice of claim. The response shall include scope of any inspection, finding and results of the inspection, a statement of whether the recipient is willing to make repairs any description of any repairs the recipient is willing to make along with a time table for completion.

The contractor receiving notice of claim from the owner has 45 days to send a written response to the owner. The response must either; a) offer a remedy at no cost to the owner, and include a detailed description of the proposed remedy and time table for completion; b) make an offer to compromise, either by monetary payment or combination of monetary payment and repairs, c) deny the claim or advise that the claim will be settled based upon settlement by the recipient's insurance carrier.

If the contractor refuses to remedy or compromise, the owner can proceed to suit. If a proposed remedy is offered, the owner has 45 days to accept or reject. If the offer is accepted, the person making the offer must meet its terms. If not, the owner can sue without further notice.

The statute also requires that the parties exchange all available discoverable evidence relating to the construction defects upon request. Exchange of those documents is intended to facilitate settlement and review. The statute authorizes an owner to make emergency repairs if required to protect health, safety or welfare. The statute also allows the parties to opt out of the procedure at time of contract or by later agreement.

The statute places a substantial road block before an owner can sue. It allows the contractor to delay suit by an owner, merely by following the procedure for offer to repair or settle. It is also full of technical requirements and areas for additional dispute, such as the degree to which defects or proposed solutions must be detailed. Because of its complexity, the statute virtually mandates that an owner disputing construction defects retain an experienced attorney.

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