Florida Legislature Enacts Recent Changes To Statute Of Limitations And Statute Of Repose Affecting Construction Litigation

On April 13, 2023, Florida’s Governor Ron DeSantis signed into law Florida SB 360, which, among, other things, shortens the statute-of-repose period for commencing an action based on the design, planning, or construction of improvements to real property.  See ch. 2023-22, Laws of Fla. (2023).  The new law went into effect immediately upon signing; however, the amendments to the statute of limitations and statute of repose set forth in section 95.11(3)(c), Florida Statutes (2023), apply only to actions commenced on or after the act’s effective date, regardless of when the cause of action accrued. See ch. 2023-22, § 3, Laws of Fla. (2023).  An exception is that any action that would not have been barred under section 95.11(3)(c) before the act was amended “must be commenced on or before July 1, 2024.” Id.

Before this amendment, any party filing an action founded on the design, planning, or construction of an improvement to real property was required to commence such an action within 4 years after the date of (i) actual possession by the owner; (ii) the date of the issuance of the certificate of occupancy; (iii) the date of abandonment of the construction if not completed; or the (iv) date of completion of the contract or termination of the contract, whichever date was latest.  However, if an action involved a latent defect, that time began to run from the time the defect was discovered or should have been discovered with the exercise of due diligence.  § 95.11(3)(c), Fla. Stat. (2022). In all cases, the action was required to be commenced within 10 years after the date of (i) actual possession by the owner; (ii) the date of the issuance of a certificate of occupancy; (iii) the date of abandonment of the construction if not completed; or (iv) the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor, and his or her employer, whichever date is latest.  Id.

With the newly enacted amendment, any party filing an action founded on the design, planning, or construction of an improvement to real property must still commence such an action within 4 years, but that date now runs from the earliest of the following dates: (i) the date the authority having jurisdiction issues a temporary certificate of occupancy, (ii) a certificate of occupancy, or (iii) a certificate of completion; or (iv) the date of abandonment of construction, if not completed.  § 95.11(3)(c), Fla. Stat. (2023).  Of particular note, the revised statute of limitations eliminates the date of actual possession by the owner as one of the accrual dates.  If the improvement relates to multiple buildings, “each building must be considered its own improvement for purposes of determining the limitations period.” Id. Furthermore, and significantly, the statute-of-repose time frame for initiating an action based on a latent defect in construction actions has been reduced from 10 years to 7 years, and the repose period similarly runs from the earliest of the issuance of a temporary certificate of occupancy, a certificate of occupancy, a certificate of completion, or the date of abandonment of construction if not completed—again eliminating actual possession by the owner as one of the accrual dates.  See id.

These changes cause would-be plaintiffs to not delay in bringing claims relating to perceived construction or design defects encompassed by the amended statute.  These changes also provide more finality to contractors with respect to the length of time they are exposed for alleged construction defects.