Quick Answer
Chapter 558 of the Florida Statutes sets a pre-suit notice-and-repair process that a property owner, including an association, must follow before filing a lawsuit or arbitration over a construction defect. The claimant serves a written notice of claim, the builder or other responsible party gets a chance to inspect and offer to repair or pay, and the claimant must respond to any offer.
For an association "representing more than 20 parcels," the notice must be served at least 120 days before filing, not 60. A lawsuit filed without following the chapter is subject to a stay on timely motion.
At a Glance
| Item | Detail |
|---|---|
| Law/citation | Fla. Stat. Chapter 558, Construction Defects (ss. 558.001 to 558.005) |
| Effective date | Created by chapter 2003-49. The definitions section (558.002) was last amended by section 18 of chapter 2023-203; the notice section (558.004) by chapter 2019-75. |
| Applies to | Claims by property owners, subsequent purchasers and associations (as defined in ss. 718.103, 719.103(2), 720.301(9) or 723.075) against contractors, subcontractors, suppliers and design professionals, for contracts made after October 1, 2009 unless the parties opted out in writing |
| Key sections | 558.002 definitions; 558.003 compliance and stay; 558.004 notice, inspection, response; 558.005 application and contract notice |
| Remedy or penalty | Court "shall stay the action, without prejudice" until the claimant complies; no fine stated |
What the Law Says
Who and what is covered
A "claimant" includes "a property owner, including a subsequent purchaser or association." An "action" means a civil action or arbitration for damages or indemnity for damage to or loss of property from an alleged construction defect. It does not include administrative actions or personal injury claims. A "construction defect" is a deficiency in design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration or remodeling that results from defective materials, a code violation giving rise to a cause of action under s. 553.84, a design that fails professional standards of care, or work that fails "accepted trade standards for good and workmanlike construction." Under 558.005, the chapter applies where the agreement to make the improvement was made after October 1, 2009 and the defect arose after completion of the building or improvement, unless the parties agreed in writing to opt out.
The notice of claim
The claimant must serve written notice referring to the chapter at least 60 days before filing, or at least 120 days before filing for an association representing more than 20 parcels. It must describe each alleged defect "in reasonable detail" and, based on at least a visual inspection, identify the location of each defect. The claimant has "no obligation to perform destructive or other testing." "Service" means certified mail with USPS evidence of delivery or attempted delivery to the last known address, hand delivery, or courier with written evidence of delivery. A notice of claim "shall not toll any statute of repose period under chapter 95."
The response clock
| Step | Standard claim | Association with more than 20 parcels |
|---|---|---|
| Notice served before filing suit | At least 60 days | At least 120 days |
| Inspection by served party | Within 30 days after service | Within 50 days |
| Served party forwards notice to subcontractors | Within 10 days | Within 30 days |
| Subcontractor written response | Within 15 days after copy | Within 30 days after copy |
| Served party's written response to claimant | Within 45 days | Within 75 days |
| Claimant accepts or rejects offer | Within 45 days after receiving the offer | Within 45 days after receiving the offer |
What the response may say
- an offer to remedy at no cost, with a detailed description and timetable;
- an offer to settle by monetary payment that will not obligate the insurer, with a timetable;
- a combination of repair and payment;
- a statement that the person disputes the claim and will not remedy or settle; or
- a statement that a payment, including insurance proceeds, will be determined by the insurer within 30 days.
After the response
If the claim is disputed, or there is no timely response, the claimant "may, without further notice, proceed with an action." If the claimant accepts a repair offer and the offeror fails to perform within the agreed time and manner, the claimant may proceed without further notice. If the offeror performs, the claimant "is barred from proceeding with an action for the claim described in the notice of claim." If the claimant sues without first accepting or rejecting an offer, the court stays the action on timely motion. Offers are not an admission of liability and are not admissible in an action under the chapter.
Inspection, testing and tolling
The claimant must give reasonable access during normal working hours. Destructive testing is by mutual agreement on terms in the statute, including a written description, a list of three qualified testers if the claimant objects, and a requirement that it "shall not render the property uninhabitable." A claimant who refuses reasonable destructive testing has "no claim for damages which could have been avoided or mitigated" had testing been allowed. Serving notice tolls the statute of limitations until the later of 90 days (120 days for associations over 20 parcels) after service or 30 days after the end of the repair or payment period in an accepted offer. The parties may extend by stipulation.
Documents and emergencies
On written request citing the subsection, the parties must exchange within 30 days design plans, specifications, as-built plans, photos and videos, expert reports, subcontracts, purchase orders and maintenance records. A claimant may make "necessary emergency repairs" to protect health, safety and welfare. An arbitration clause that conflicts with the chapter yields to the chapter.
What This Means in Practice
For boards
Our reading: for an association over 20 parcels, the statutory minimum before filing is 120 days from service, but the response and offer-acceptance periods can stretch the practical timeline. Meanwhile the notice does not stop the statute of repose, so counsel should calendar repose separately. See our page on the 2023 statute of repose bill.
For owners
Owners should expect the board to control the notice and any inspection access, since "an association's right to access property for either maintenance or repair includes the authority to grant access for the inspection."
Developer turnover
Section 718.301(7) separately requires that defects alleged by an association against a developer be examined and certified by an appropriately licensed Florida professional. Read the two together; see our turnover page.
What the chapter does not say
- It creates no new rights or causes of action, and it does not bar or limit existing rights, causes of action or defenses except as the chapter specifically provides.
- It does not apply to personal injury claims.
- Whether an association with more than 20 parcels counts only residential parcels, or how "representing" is measured, is not defined in the text we read. Ask counsel.
Timeline
| Date | Event |
|---|---|
| 2003 | Chapter created by chapter 2003-49 |
| October 1, 2009 | Chapter applies to agreements made after this date unless parties opt out in writing |
| 2019 | Section 558.004 last amended (chapter 2019-75) |
| 2023 | Section 558.002 amended by chapter 2023-203, section 18 |
We did not review whether later bills changed sections other than those listed in the current History lines.
Related Florida Law
- Fla. Stat. § 718.301, developer turnover
- SB 360 (2023), statute of repose
- Westpark Preserve v. Pulte (2023)
- Chapter 718, Condominium Act
- Chapter 720, Homeowners' Association Act
- SB 154 (2023)
Board Checklist
- Engage counsel and licensed professionals before drafting a notice of claim.
- Count parcels to determine whether the 120-day or 60-day period applies.
- Prepare a notice that cites Chapter 558 and describes each defect and its location.
- Serve by certified mail with USPS record, hand delivery, or courier with written evidence.
- Calendar the 45-day deadline to accept or reject any offer.
- Separately calendar any statute of limitations and statute of repose dates.
- Plan inspection access and any destructive-testing agreement.
- Preserve plans, photos, expert reports and maintenance records for the document exchange.
Frequently Asked Questions
Do associations have to follow Chapter 558 before suing a builder?
Yes, for claims within the chapter. A suit filed without compliance is stayed on timely motion until the claimant complies.
How long before filing must notice be served?
At least 60 days, or at least 120 days for an association representing more than 20 parcels.
What can the builder do after notice?
Inspect, offer repair, payment or both, dispute the claim, or state that its insurer will decide on payment within 30 days.
Does the notice pause the statute of repose?
No. The statute says a notice of claim "shall not toll any statute of repose period under chapter 95."
Does it pause the statute of limitations?
Yes, for the period described in 558.004(10), generally until the later of 90 days (120 days for larger associations) or 30 days after the repair or payment period.
Are personal injury claims covered?
No. The definition of "action" excludes personal injury claims.
Can the parties change the process?
Yes. They may agree in writing to pre-action mediation or otherwise alter the procedure, or opt out as described in 558.005.
Where This Comes From
We read the full current text and History lines of Fla. Stat. Chapter 558 (ss. 558.001 to 558.005) on the Florida Legislature's Online Sunshine site. The official chapter is at leg.state.fl.us.
How APM Helps
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Legal disclaimer: This article is general information, not legal advice. Laws change and associations differ. Confirm the current statute text and how it applies to your governing documents with a licensed Florida attorney before acting.
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