The Fourth District Court of Appeals in Florida recently issued a decision in Gindel v. Centex Homes, that increases the amount of time homeowners have to file a lawsuit against homebuilders. The Court relied on basic principles of statutory interpretation to conclude that issuing pre-suit notice is an “action” under Florida’s statute of repose.
The statute of repose for improvements to real property provides a ten-year time period for homeowners to file an action against the homebuilder.1 In the Gindel case, homeowners moved into a townhome complex built by Centex Homes on March 31, 2004. Based on the statutory timeline, the homeowners had until March 31, 2014 to file an action against Centex Homes for any defects in the townhomes.
On February 6, 2014, before the ten-year deadline, the homeowners sent Centex a pre-suit notice of defect. The homeowners sent the notice to Centex in compliance with Florida’s mandatory pre-suit procedure statute. The statute requires a homeowner to notify the homebuilder of any construction defects before filing a lawsuit.2 The purpose of the statute is to give the homebuilder a chance to cure the defect as an alternative to litigation.
For the homeowners in this case, the additional procedural steps almost cost them their entire claim. Once Centex notified the homeowners that it would not cure the defects described in the pre-suit notice, the homeowners filed a lawsuit on May 2, 2014, a month past their ten-year deadline. Centex filed a motion to dismiss based on the statute of repose.
The issue before the court centered on whether the statute of repose was satisfied by the pre-suit notice given on February 6th. The court explained that because the statute of repose defines “action” as a civil action or proceeding, and because pre-suit notice is a proceeding, the pre-suit notice satisfies the statute of repose. The court reasoned that requiring homeowners to file a lawsuit to satisfy the statute of repose would render the term “proceeding” superfluous. The court explained that a better reading of the statute includes pre-suit notice as a proceeding that is part of an “action.”
The court held that the requisite pre-suit notice was sufficient to satisfy the statute of repose. Because the action commenced prior to the March 31, 2014 deadline, the homeowners were not barred from then filing suit.
The court’s interpretation of the statute of repose allows the homeowners to continue their suit against Centex to recover damages for construction defects made over 14 years ago. While this ruling likely will not open the flood gates of litigation, lawyers representing both homeowners and homebuilders should be aware that the statute of repose for improvements to real property does not require a formal lawsuit; rather pre-suit notice of a construction defect will protect plaintiffs from having their case dismissed.
1 Section 95.11(3)(c), Florida Statutes (2014).
2 Section 558.004, Florida Statutes (2014).