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Builders’ sale contracts may provide leeway for homeowners to file complaints years after closing, despite statute of repose.

July 1, 2017
Busch v. Lennar Homes, LLC, 42 Fla. L. Weekly D 863 (Fla. 5th DCA 2017)

The plaintiff entered into a sales contract with the defendant for the construction of a home. Ten years after closing on the home, the plaintiff filed suit against the builder, alleging construction defects. The defendant filed a motion to dismiss, arguing the claim was barred pursuant to Section 95.11(3)(c), Florida’s statute of repose, which states that an action must be commenced within 10 years “[a]fter the actual possession by the owner, the date of issuance of the certificate of occupancy...or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.” Because the sales contract permitted the defendant to make repairs after closing, the court held that, based on the allegations of the complaint, it was unclear whether all work pursuant to the sales contract was completed at the time of closing. Therefore, the statute of repose defense was premature. In order to protect themselves from litigation, builders should review their sales contract and require that all work be completed prior to closing. In doing so, the closing date would serve as a firm marker as to when the statute of repose begins to run and prevents homeowners from pursuing claims years after closing, when the defendant builder may have little to no records or information regarding the construction of the home. 

 

Case Law Alerts, 3rd Quarter, July 2017

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