On the table Wednesday was whether the 60 day mandatory pre-suit notice and opportunity to cure mandated by § 558.003 and § 558.004(1)(a) Fla. Stat. 2014 extends the Statute of Repose ten year deadline for filing a claim for a latent construction defect. The decision was Gindel v. Syntax Homes (Case No. 4D17-2149, September 12, 2018).

The timeline is straightforward:

• March 31, 2004, homeowners closed and took possession of townhomes constructed by Centex.
• February 6, 2014, homeowners provided a Chapter 558 pre-suit notice of defect to Centex.
• May 2, 2014, after Centex notified the homeowners that Centex would not cure the alleged defects, the homeowners filed suit.

Reversing, the appellate court stated that the ten year Statute of Repose provided by §95.11(3)(c), Fla. Stat. (2014) began to run from the date of closing.

The key for the court was what is an “action.” The court quickly determined that their was no one size fits all definition. The reason is that different laws had different statutory definitions for “action”!

• Chapter 95 containing the Statute of Repose: a civil action or proceeding….” §95.011, Fla. Stat. (2014).
• Chapter 558 containing the construction claims notice: any civil action or arbitration proceeding…. §558.002(1), Fla. Stat. (2014)

Chapter 558 continues to include the 60 day pre-suit notice of defect requirement, prohibiting the filing of a “action” “without first complying with the requirements of this chapter.” §558.004(1)(a), Fla. Stat. (2014).

The court held that the definition of “action” in the two chapters must be kept separate. The Statute of Repose definition of “action” in Chapter 95 is broader than the definition in Chapter 558, §95.11(3)(c)’s definition includes a “proceeding.” The “action” defined in Chapter 558 may not commence before the notice. Because an “action” cannot be filed before the notice, the notice is in essence a “proceeding” initiated as defined in Chapter 95 and thus is a “action” for the purpose of the Chapter 95 Statute of Repose.

As an independent basis for reversal, perhaps as dicta, the court commented that prohibiting the filing of an action until the pre-suit notice is provided which would have the effect of barring the claim would constitute an unconstitutional impairment to access of the courts.

The court distinguished Busch v. Lennar Homes, LLC, 219 So.3d 93, 96n.2 (Fla. 5th DCA 2017) which noted that tolling the Statute of Repose to allow time for a pre-suit notice was not an unconstitutional bar of access to the counts because of the stay right. Instead, the Gindel court stated that because the pre-suit notice requirement is mandatory, the developer should not be allowed to utilize the stay “as a sword against the homeowners” who “should not be penalized for rightly complying with the mandates of the [pre-suit notice] statute.”

The decision has the practical effect of extending the Statute of Repose for the Chapter 558 pre-suit notice period. The impact of the court’s pronouncement that the pre-suit notice period is mandatory, barring an early filed claim, may have no practical consequence as the statute expressly anticipates the potential for an early filed claim by authorizing a stay of litigation, though the stay is worded in response to an offer, § 558.004(7), which leads back to the stay discussion in Busch. Of course, if a defendant could show some prejudice by an earlier filing then that might create another story.

There is an interesting interplay between what statute should apply. The court applied without comment the 2014 statutes, the law in effect at the time the lawsuit was filed, not the statute in effect at the time of the sale when the defect apparently occurred. The earlier Statute of Repose provided for a fifteen year bar date. § 95.11(3)(c). It is noted that Fla. Laws 2006-145, Section 3) shortening the fifteen year Statute of Repose to ten years, stating that it would apply with a one year phase-in to all litigation commenced after July 1, 2006.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified:

Real Estate Attorney

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

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