Choice of Law

By George Breur | June 6, 2022

Understanding Florida’s Construction Defect Statute

Does a corporation domiciled in a different state whose construction contract provides its home state’s law applies in the event of a breach of contract still have to comply with Florida’s Construction Defect Statute? Yes.

Can a venue provision require a lawsuit be brought in the state where the corporation is situated to circumvent these requirements? Unfortunately, the answer is no.

MM&H may not be local celebrities (except perhaps oft awarded Don Hayden), but we do have local knowledge. This is particularly important for our out-of-state co-counsel and real estate developers negotiating or litigating construction matters here in Florida. Any construction attorney in town surely knows that Florida’s Construction Defect Statute requires aggrieved property owners to provide contractors with prior written notice of alleged construction defects and an opportunity to resolve construction defect claims before filing a lawsuit. But does a corporation domiciled in a different state whose construction contract provides its home state’s law applies in the event of a breach of contract still have to comply with Florida’s Construction Defect Statute? Can a venue provision require a lawsuit be brought in the state where the corporation is situated to circumvent these requirements? Unfortunately, the answer is no. Any venue provision requiring suits against a Florida contractor for construction defects be brought outside of Florida is void as against public policy.

In addition, Florida’s Construction Defect Statute specifically provides that it does not bar, limit or create any rights, defenses or causes of action which means it is a procedural statute. Choice of law provisions, however, are typically substantive in nature, and not procedural. In other words, Florida procedural law governs, and compliance with the notice and opportunity to cure requirements under the statute are necessary before filing suit for defective construction to property in Florida. Failure to comply will result in a stay of the proceedings until the mandatory requirements have been satisfied.

The only way to avoid the strict statutory framework of Florida’s Construction Defect Statute is if the claimant and potential defendant have agreed in writing beforehand, to opt out of the pre-suit notice and opportunity to cure obligations.