Construction defect lawsuits can involve numerous parties — including developers, contractors, subcontractors, architects, engineers, and others involved in the design and construction of improvements to real property — and may continue for years. Claims may also arise long after a project is completed, when memories have faded, documents may be unavailable, and participants in the project may no longer be available.

For these reasons, defendants should determine at the outset whether a construction defect lawsuit was filed within the time permitted by law. Two important defenses are the statute of limitations and the statute of repose, either of which may provide grounds for an early dismissal and avoid the significant costs associated with construction defect litigation.

What Is Florida’s Construction Statute of Limitations?

Florida Statute § 95.11(3)(b) generally provides a four-year limitation period for all actions based on the design, planning, or construction of an improvement to real property.¹

The four-year period generally begins upon the issuance of a temporary certificate of occupancy, certificate of occupancy, or certificate of completion, or upon abandonment of construction if the project was not completed.²

For claims involving a latent defect — a defect that is hidden or concealed — the limitations period generally runs from the date the defect was discovered or should have been discovered through the exercise of due diligence.

The distinction between a patent defect, which is visible and readily identifiable, and a latent defect can therefore be significant to the defense.

A property owner may contend that a defect was not discovered until years after completion. A contractor or other defendant, however, may have grounds to dispute when the defect was actually discovered or when it reasonably should have been discovered.

Determining the accrual date — the date on which the statute of limitations begins to run — is therefore an important early step in defending a construction defect claim.

What Is the Statute of Repose?

Unlike a statute of limitations, a statute of repose establishes an outside deadline for filing a lawsuit. It generally is not extended based on when a defect is discovered or when it reasonably should have been discovered.

Under Florida’s current construction statute, an action involving the design, planning, or construction of an improvement to real property generally must be commenced within seven years after the earliest applicable statutory triggering event. These events include the issuance of a temporary certificate of occupancy or certificate of occupancy, or abandonment of construction if the project was not completed.

Property owners may argue that repair or warranty work performed after the triggering event creates a new date from which the statute of repose runs. Work performed to correct or repair construction after issuance of a certificate of occupancy, however, generally should not extend the repose period.

Multiple buildings within the same project may also have different repose deadlines. Florida law provides that when an improvement to real property consists of multiple buildings, each building is considered a separate improvement for purposes of determining the applicable period.

Accordingly, when a claim involves multiple buildings, defendants should examine the applicable certificates, permits, construction history, and allegations on a building-by- building basis.

For defendants, the statute of repose provides an important measure of finality. If a lawsuit is filed after the applicable repose period has expired, the claim may be barred regardless of when the alleged defect was discovered. Defense counsel should therefore determine the applicable repose date early in the case and identify the statutory event that triggered the period.

In 2023, Florida shortened the construction statute of repose from 10 years to 7 years through the enactment of SB 360. The seven-year repose period generally applies to lawsuits filed after July 1, 2024, while the prior 10-year period generally applies to lawsuits filed before July 1, 2024.

Are There Exceptions to Florida’s Construction Statute of Repose?

Florida’s current statute contains a specific provision addressing counterclaims, crossclaims, and third-party claims arising from the conduct, transaction, or occurrence identified in a pleading. These claims may generally be commenced within one year after service of the pleading to which they relate, even if they otherwise would be time-barred.

Defendants should therefore evaluate limitations and repose issues not only as to the plaintiff’s claims, but also as to potential claims among the various participants in the construction project.

Speak With a Florida Construction Defense Attorney

If you are a contractor, subcontractor, developer, architect, engineer, or other construction professional facing a Florida construction defect claim, an early legal evaluation can be critical.

An attorney experienced in Florida construction litigation can review the project records, contracts, alleged defects, applicable statutory deadlines, and filing dates to determine whether a plaintiff’s claim may be subject to a statute of limitations or statute of repose defense.

This article is provided for general informational purposes only and does not constitute legal advice. The application of Florida’s statutes of limitations and repose depends on the specific facts, claims, parties, and circumstances of each case. Construction professionals facing a potential or pending claim should consult qualified Florida counsel regarding their particular circumstances.

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¹ Florida Dep’t of Transp. V. Echeverri, 736 So.2d 791, 792 (Fla. 3rd DCA 1999)(rejecting FDOT’s contention that section 95.11(3)(c) does not apply to actions for indemnity). Section 95.11(3)(c) is replaced by section 95.11(3)(b) after amendments to Florida Statutes in 2023.

² The events triggering the statute of limitations for patent defects and statute of repose are applicable to all defect claims are: the date the authority having jurisdiction issues a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion, or the date of abandonment of construction if not
completed.