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JUDY STARKBefore going to court, unhappy owners must tell contractors or builders what they did wrong and give them a chance to fix it.
Consumers who are unhappy with the work done by their builder or remodeling contractor now must take another route to seek satisfaction before they throw up their hands and say, "See you in court!"
A bill passed by the Legislature this spring and signed by Gov. Jeb Bush on May 27 gives builders 60 days to fix defects before homeowners can file a lawsuit. Homeowners have to tell contractors what's wrong and must give contractors and subcontractors a chance to examine the faulty work; to fix it or offer a financial settlement; or to dispute the claim.
"Under the old law, (homeowners) didn't have to tell you what part of your work was faulty" before they sued, said the bill's sponsor, Sen. Michael S. Bennett, a Republican whose district covers parts of Manatee, Sarasota, Lee, DeSoto and Charlotte counties. He is the owner of Aladdin Electric in Sarasota; he described the company as "one of the larger electrical contractors in the area."
He said that condominium associations often sue every contractor who worked on a project: "The grass guy, the plumber, the painter, the roofer - they name everybody. Then I have to go down, and it costs me $7,000, $8,000, $10,000 to get my attorney to get me dismissed because there was nothing wrong with me," he said. "Under this law . . . they've got to give you the opportunity to fix it. You don't fix it, they sue."
The legislation is similar to alternative dispute resolutions passed by legislatures in several other states. The National Association of Home Builders supports these measures.
Here's how the new law works: Homeowners cannot sue the contractor until they have given 60 days' written notice specifying the defects. (This is called "filing notice of claim.")
The contractor has five business days to inspect the home. The contractor has 10 days after receiving the notice of claim to notify subcontractors and suppliers of defects that the contractor thinks they are responsible for. The subcontractors and suppliers get five business days to inspect the house and respond to the contractor in writing.
Within 25 days after receiving the notice of claim, the contractor must respond to the homeowner in writing. The contractor can fix the problem; pay the homeowner money damages; or dispute the claim.
The homeowner has 15 days to accept or reject the contractor's offer. The only way the homeowner can reject the written offer is to print the word "rejected" on it and return it to the contractor. If a homeowner does nothing, he or she has accepted the contractor's offer. A homeowner who rejects an offer is free to sue the contractor.
The law applies to "contractors," which it defines as anyone involved in "the business of designing, developing, constructing, manufacturing, selling, or remodeling dwellings or attachments thereto." It also applies to "design professionals": architects, interior designers, engineers, landscape architects and surveyors.
Asked if the reference to "selling" means that real estate agents are affected by the law, Bennett was silent for a moment, then responded, "It would be up to the courts to determine, but that was not my intent to put real estate agents in there. We were thinking new-home-developer-type things. You might be able to construe it as real estate agents, and if it cuts down on the number of lawsuits, I'm for it. If there is something wrong with the sale and the agent is notified of that, they should cure it or they should open themselves up to the court system. Though it was not my intent to do it that way, I don't have any problem with that."
Bennett said that he wanted to avoid "ambush lawsuits." Unhappy homeowners should tell contractors what they did wrong before they file a lawsuit, and the contractor should fix it. "If I don't, shame on me. I deserve to be sued," he said.
The law says that "upon entering into a contract," the contractor must provide the homeowner notice of the procedure. It gives specific wording that must be provided and says that it may be included as part of the contract. Bennett said that contractors typically ask clients to sign a statement acknowledging that they realize the contractor can file a lien against the house if the owners don't pay the bills. He suggested that contractors might use a similar procedure to notify owners of the procedure for defect resolution.
The law says that if a claimant goes to court without complying with the new law, the action goes nowhere until he or she does so. But Bennett and Joseph A. Narkiewicz, executive officer of the Tampa Bay Builders Association, said that the law would not preclude homeowners from using a home buyers' warranty policy or a contractor's dispute-resolution procedure to resolve disputes.
Until now, often "contractors didn't have an opportunity to fix mistakes, and that's not fair," said Daniel E. Ashline, whose Pinellas remodeling company bears his name and who heads the Tampa Bay Builders Association's Remodelors' Council. "A law that has a procedure for that sounds like a good deal."
He wondered what would happen if relations had deteriorated to the point where the homeowner no longer wanted to do business with the builder. "A lot of times they won't let you go back," he said.
Bennett suggested that such a case might end up in court anyway, and a judge might suggest that someone else supervise the errant contractor or that a mutually acceptable third party do the repair.
The only legislator to vote against the bill was Sen. Mike Fasano, R-New Port Richey, who said that he received "a slew of e-mails, calls and letters" from voters inside and outside his district who urged him to oppose it because they thought it would take away their right to go after errant contractors.
James W. Martin, a St. Petersburg lawyer, said that the law appears at first to be pro consumer: "You don't have to go to court first; you don't have to hire a lawyer. But there are so many traps, if you don't have a lawyer to advise you, you may find yourself unable to prosecute, and you may have waived your rights or agreed to things" unintentionally, he said.
The most glaring example, Martin said, is that if a homeowner doesn't return the contractor's proposal for cure marked "rejected" within 15 days, "if you don't do it right, you've accepted that offer. It's not at all consumer-friendly."
Martin predicted that consumers will want to have a lawyer walk them through the procedure to make sure they do it right, "which will cost more money to do this procedure first."
- To read the law, go to election.dos.state.fl.us and click on "Laws/opinions/rules," then choose "general laws." Click on "general/local/special session laws," then on "2003 bill to law cross reference," then on "Ch. 2003-49."