Florida State Guide
Florida New Home
Warranty Rights
A complete reference for original buyers of newly built homes in the State of Florida — updated for SB 360 (April 2023) and the 2025 Construction Recovery Fund caps.
This document is a general reference. It is not legal advice and does not create an attorney client relationship. Before taking action, consult a licensed Florida attorney.
Download the Complete Document Package
- Legal Warranty Reference — Florida implied warranty, Chapter 558 procedure, SB 360 limitations and repose, Homeowners’ Construction Recovery Fund, FDUTPA
- Builder Defect Walkthrough Intake Form (FL specific) — room by room checklist for documenting every defect
Executive Summary
- Florida recognizes a common law implied warranty of habitability on every newly built home sold by a builder vendor to the original buyer (Gable v. Silver, 264 So. 2d 418 (Fla. 1972)). It covers latent defects affecting structural soundness, fitness for habitation, and workmanlike construction.
- Florida Statute § 553.835 (2012) bars implied warranty claims for off site improvements (roads, drainage, retention ponds, off site utilities). The Florida Supreme Court’s expansion in Maronda Homes (2013) was effectively superseded prospectively.
- Before filing suit, the homeowner must serve a 60 day pre suit notice under Fla. Stat. § 558.004 (120 days for an association representing more than 20 parcels). Failure to serve the notice does NOT bar the suit — the court stays the action until the homeowner complies.
- Senate Bill 360 (effective April 13, 2023) cut the statute of repose from 10 years to 7 years and redefined the trigger. Repose now runs from the earliest of TCO, CO, certificate of completion, or abandonment of construction. The grace period for old claims expired July 1, 2024.
Foundational Case Law
Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA 1972), adopted and approved, 264 So. 2d 418 (Fla. 1972)
Florida’s foundational implied warranty case. The Florida Supreme Court adopted the Fourth District’s opinion, holding that implied warranties of fitness and merchantability extend to purchasers of new homes and condominium units from builder vendors. This is the departure from caveat emptor.
Hesson v. Walmsley Construction Co., 422 So. 2d 943 (Fla. 2d DCA 1982)
Implied warranty of habitability applies to the package sale of a new house and lot by a builder vendor to the original purchaser. The warranty covers conditions in existence at the time of sale.
David v. B&J Holding Corp., 349 So. 2d 676 (Fla. 3d DCA 1977)
Extended the implied warranty to condominium units. Buyers who could hear neighbors through inadequately insulated walls had a viable implied warranty claim against the builder.
Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So. 2d 515 (Fla. 4th DCA 1981)
Confirmed condominium unit owner standing for common law implied warranty claims. Frequently miscited as a 1983 case — the correct year is 1981.
Conklin v. Hurley, 428 So. 2d 654 (Fla. 1983)
Implied warranty does not extend to seawalls on vacant residential lots. The doctrine is tied to new dwellings and to the buyer’s reasonable expectation of habitability — not to land improvements unconnected to a new home.
Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners Ass’n, 127 So. 3d 1258 (Fla. 2013)
Held the common law implied warranty extends to off site improvements providing “essential services” (roads, drainage, retention ponds, underground utilities). The Florida Legislature responded with Fla. Stat. § 553.835, which the Court applied prospectively only. § 553.835 now controls all new claims arising after its effective date and bars implied warranty claims for off site infrastructure.
Disclaimer of the Implied Warranty
Florida courts allow disclaimer of the implied warranty only where the disclaimer is in writing, conspicuous (bold or uppercase), specifically identifies the warranties being waived, and is unambiguous. Generic boilerplate — “any other warranties express or implied” or simple “as is” language — has been held ineffective. A homeowner who closed on a production builder standard contract should not assume the warranty was successfully disclaimed without reading the disclaimer page closely.
Who Can Sue
The warranty runs from the builder vendor to the original purchaser. Florida case law is unsettled on subsequent purchasers, but the prevailing view — supported by Drexel Properties and its progeny — is that subsequent purchasers may sue on the original implied warranty so long as the limitations and repose periods have not expired.
Damages
Cost of repair where reasonable; diminution in fair market value where cost of repair would be economically wasteful. Consequential damages recoverable in contract where reasonably foreseeable. Attorney’s fees not recoverable on the common law implied warranty alone — Florida follows the American Rule. Fees ride on a contract clause, FDUTPA, or the proposal for settlement statute (§ 768.79).
Important
Chapter 558 is Florida’s mandatory pre suit notice scheme. Failure to serve the notice does NOT bar the lawsuit — the court stays the action under § 558.003 until the homeowner complies. Builder lawyers sometimes overstate this; the case is paused, not dismissed.
Who and What Is Covered
- Construction defect (§ 558.002(5)) = deficiency arising from defective materials, products, or components; violation of applicable building codes; failure of design to meet professional standards; or failure to construct in accordance with accepted trade standards for good and workmanlike construction
- Claimant = property owner, homeowners’ association, or condominium association asserting a construction defect
- Respondent = contractor, subcontractor, supplier, or design professional alleged to have caused the defect
The Sequence
| Step | What Happens |
|---|---|
| Claimant serves written notice | Single family homeowner: at least 60 days before filing suit. Association representing more than 20 parcels or units: 120 days. Notice must describe each alleged defect in reasonable detail based on at least a visual inspection (§ 558.004(1)). |
| Respondent’s inspection window | Within 30 days of receiving the notice (50 days for associations representing more than 20 parcels), respondent may inspect, perform destructive testing with reasonable notice, and serve a written response. |
| Respondent’s written response | Offer to repair at no cost; offer to settle by monetary payment, repair, or both; offer to settle without inspection; or written dispute of the claim with a statement of the basis (§ 558.004(5)). |
| Claimant’s response | Within 45 days of receiving the respondent’s offer, the claimant must accept, reject, or counter in writing. |
| Consequence of skipping | Court stays the action under § 558.003 until the claimant complies. Not a jurisdictional bar — the case is not dismissed. |
Builder’s Contract Disclosure
Section 558.005 requires every written contract for improvement of real property between an owner and a contractor or design professional entered into after October 1, 2009 to contain a specific Chapter-558 notice. Failure of disclosure does not relieve the homeowner from giving notice, but it is useful evidence in any later dispute about good faith.
Practical Drafting Note
Send the initial notice by certified mail, return receipt requested. Chapter 558 does not require certified mail by statute, but it preserves clean proof of service and the start of the 30 day inspection / 60 day overall window. The 120 day association notice is frequently misstated as 90 days in older practitioner materials.
Critical 2023 Amendment
Senate Bill 360, signed and effective April 13, 2023, substantially rewrote Florida’s construction defect limitations and repose statute. The repose was cut from 10 years to 7 years and the triggers were redefined. Homeowner materials that still cite a 10 year repose or a “date of completion” or “date of actual possession” trigger are out of date.
The 4 year Limitations Period
Actions founded on the design, planning, or construction of an improvement to real property must be commenced within 4 years of the earliest triggering date. For latent defects (defects not apparent on the exercise of ordinary diligence), the 4 year period accrues from the time the defect is discovered or should have been discovered with ordinary diligence.
The New 7 year Statute of Repose
No action may be commenced more than 7 years after the earliest of:
- Issuance of a temporary certificate of occupancy (TCO)
- Issuance of a certificate of occupancy (CO)
- Issuance of a certificate of completion (CC)
- The date of abandonment of construction if not completed
The repose is absolute. There is a narrow special rule for model homes: the period does not begin until the date of the deed transferring title to the first purchaser. For multi building projects, limitations and repose periods run building-by-building from each building’s earliest triggering date.
Citation Note
Older sources cite Fla. Stat. § 95.11(3)(c). After SB 360, some current statutory compilations recodify the construction defect provision as Fla. Stat. § 95.11(3)(b). Both cites appear in current practice. Counsel should confirm the current subsection letter against the canonical Online Sunshine text before filing.
Retroactivity and the Closed Grace Period
SB 360 applied to all actions commenced on or after the April 13, 2023 effective date, regardless of when the home was completed. The statute carved out a grace period: claims that would not have been barred under prior law had to be filed by July 1, 2024. That window has now closed. Constitutional challenges to the retroactivity provision were pending in lower courts as of this writing, but no published appellate decision has invalidated the SB 360 amendments. Verify the current status before relying on any retroactivity argument.
All Relevant Limitations Clocks
| Theory of Liability | Period | Trigger / Accrual |
|---|---|---|
| Construction defect limitations (post SB 360) | 4 years (§ 95.11(3)(c)) | Earliest of TCO / CO / CC / abandonment. Latent defects: from discovery. |
| Construction defect repose (post SB 360) | 7 years (§ 95.11(3)(c)) | Earliest of the four triggering dates. Absolute outer bar. Reduced from 10 years. |
| Written contract | 5 years (§ 95.11(2)(b)) | Date of breach. |
| Oral contract | 4 years (§ 95.11(3)(k)) | Date of breach. |
| General negligence (post HB 837) | 2 years (§ 95.11(4)(a)) | Date of accrual. Cut from 4 to 2 years by HB 837, effective March 24, 2023. |
| FDUTPA | 4 years (§ 95.11(3)(f)) | Date of violation. |
Practical Posture
Request copies of the TCO, CO, and CC from the local Building Department immediately. The earliest of those documents — or evidence of abandonment if construction was never completed — controls the entire timeline. Many homeowners do not realize they need to obtain these documents from the county to nail down the start of the clock.
A compliant pre suit demand letter under Florida law should contain:
- Homeowner’s full legal name(s) and property address
- Date of issuance of the TCO, CO, or CC (whichever is earliest), plus the date the homeowner first noticed each defect
- Identification of the contractor by name and DBPR/CILB license number, plus any known subcontractors
- A reasonably detailed description of each defect, with location, nature, and observed symptoms — based on at least a visual inspection
- For each defect, the legal theory being asserted (implied warranty under Gable/Hesson, breach of written contract, negligence, FDUTPA, breach of express limited warranty)
- Any third party inspection report (general home inspection, structural engineer, master trade specialist)
- Express invocation of Fla. Stat. § 558.004, citing the 60 day notice period (or 120 days for associations representing more than 20 parcels) and the respondent’s options under § 558.004(5)
- A proposed inspection access protocol and reasonable dates
- Statement of the remedy sought (repair at no cost, settlement by monetary payment or repair, independent repair at builder’s cost) and a dollar figure where known
- Reservation of all rights, including under the limited warranty, FDUTPA, the Homeowners’ Construction Recovery Fund (§ 489.140), and any proposal for settlement remedies under § 768.79
- Signature and certified mail tracking number
- Attached evidence appendix — photo log, defect schedule, communications log, inspection report
Evidence Preservation Checklist
- Request copies of TCO, CO, CC, and inspection cards from the local Building Department
- Dated, geotagged photographs and video of every defect, including progression over time
- Written log of every communication with the builder
- Retain all closing documents, builder contract, change orders, plans, specs, marketing materials
- Obtain an independent third party inspection report
- Preserve physical evidence in place where feasible; do not undertake destructive testing before the builder’s 30 day inspection window
- Notify the builder in writing before any destructive testing or repair
- Keep receipts for any mitigation or repair expenses
- Maintain a single chronological case file
Florida DBPR — Construction Industry Licensing Board
Unlike Alabama and Ohio, Florida licenses general, building, and residential contractors at the state level through DBPR’s CILB under Chapter 489. A homeowner damaged by a licensed contractor can file a complaint that may result in fines, probation, suspension, revocation, and restitution orders.
- License lookup: myfloridalicense.com
- Complaint filing: myfloridalicense.com — file a complaint
- License number disclosure (§ 489.119(5)): the contractor’s license number must appear on every contract, bid, proposal, advertisement, website, email, social media, and on vehicles bearing the contractor’s name. Missing disclosure is a regulatory violation.
Florida Homeowners’ Construction Recovery Fund — § 489.140
A state administered fund that pays homeowners who have obtained a final judgment, arbitration award, or restitution order against a licensed contractor and have been unable to collect. The caps depend on the date the construction contract was signed.
| Cap Type | Contracts Signed Before July 1, 2024 | Contracts Signed On/After July 1, 2024 (Effective Jan. 1, 2025) |
|---|---|---|
| Per claim — Division I (general, building, residential) | $50,000 | $100,000 |
| Per claim — Division II (specialty) | $15,000 | $30,000 |
| Aggregate per licensee — Division I | $500,000 | $2,000,000 |
| Aggregate per licensee — Division II | $150,000 (verify) | $600,000 |
- Requires a final judgment, arbitration award, or restitution order for an act on or after July 1, 1993, in connection with the construction or improvement of an owner occupied residence
- The homeowner must show financial loss and must have exhausted reasonable remedies to collect — including writ of execution against the licensee
- Strict filing deadlines — generally 1 year from the conclusion of all proceedings, including appeals
- Older articles cite only the pre July 2024 caps. Counsel should verify the contract date and apply the current caps accordingly.
Florida Attorney General — Consumer Protection
Handles FDUTPA referrals, deceptive trade practice patterns, and consumer complaints. The AG does not litigate individual cases but maintains complaint records that can be used to demonstrate a pattern of misconduct and to support a FDUTPA claim.
- Online complaint: myfloridalegal.com/consumer protection
- Hotline: 1-866-9-NO-SCAM (1-866-966-7226)
Local Building Code Enforcement
Permits and inspections are administered at the local level under the Florida Building Code. Code violation complaints to the local Building Department can trigger reinspection, stop work orders, or certificate of occupancy revocation. Always request copies of the TCO, CO, CC, and inspection records — they are central to the SB 360 timeline analysis.
Industry & Mediation Channels
- Florida Home Builders Association (FHBA): fhba.com. Local chapters in every major metro. Do not run binding dispute resolution but may provide informal mediation referrals.
- Better Business Bureau: bbb.org/file-a-complaint. Non binding complaint and mediation services.
Court Jurisdiction (effective January 1, 2023)
| Court | Dollar Limit | Statute | Notes |
|---|---|---|---|
| Small Claims (within County Court) | $8,000 | § 34.01; Fla. Sm. Cl. R. | Raised from $5,000 effective January 1, 2020. |
| County Civil Court | $8,000.01–$50,000 | § 34.01 | Raised from $30,000 to $50,000 effective January 1, 2023. |
| Circuit Civil Court | Over $50,000 (no upper cap) | § 26.012 | Full discovery; jury trial available; most meaningful defect cases proceed here. |
Venue is the circuit or county court of the county where the property sits.
This is a general sequencing template, not a fixed timeline. Specific deadlines depend on the earliest triggering document under § 95.11(3)(c), the date the homeowner first noticed each defect, and the terms of any limited warranty.
| When | Action |
|---|---|
| Day 0 | Homeowner first notices the defect. Photograph and date stamp. Save voicemails, texts, emails. Pull the closing package, limited warranty, construction contract, and request copies of TCO / CO / CC from the local Building Department. |
| Day 0–7 | Third party inspection — licensed home inspector, structural engineer, or master trade specialist. Preserve original report, photographs, moisture meter readings, and chain of custody. |
| Day 7–14 | Engage Florida counsel. Provide intake form, photo log, communications log, inspection report, and earliest triggering document. |
| Day 14 | Serve the § 558.004 notice on the contractor (and any subcontractors / suppliers / design professionals) by certified mail, return receipt requested. Homeowner: 60 days before suit. Association > 20 parcels: 120 days. |
| Day 14–44 | Respondent’s 30 day inspection window (50 days for associations > 20 parcels). Respondent may inspect, perform destructive testing with reasonable notice, and serve a written response with one of the § 558.004(5) options. |
| Day 44–89 | Claimant’s 45 day window to accept, reject, or counter the respondent’s offer. |
| Day 60+ (90+ for associations) | If no acceptable resolution, file suit. Confirm the 4 year limitations clock has not run from discovery, the 7 year repose has not run from the earliest triggering document, and the 5 year written contract clock under § 95.11(2)(b) is preserved. File CILB, AG, and BBB complaints in parallel. |
| At filing | Circuit Civil for over $50,000; County Civil for $8,000.01–$50,000; Small Claims for under $8,000. Consider serving a proposal for settlement under § 768.79 early to preserve fee shifting leverage. |
| After judgment | If the homeowner obtains a final non consent judgment, arbitration award, or restitution order and the contractor fails to pay, file a Homeowners’ Construction Recovery Fund claim with DBPR within 1 year of the conclusion of all proceedings. Apply the correct caps based on the contract signing date. |
- The 10 year statute of repose is GONE. SB 360 (April 13, 2023) cut the repose to 7 years from the earliest of TCO, CO, certificate of completion, or abandonment. Materials still citing a 10 year repose or “date of completion” / “date of actual possession” triggers are out of date.
- Chapter 558’s association notice is 120 days, not 90 days. The 90 day figure circulated for years but is incorrect for associations representing more than 20 parcels.
- Failure to serve the Chapter 558 notice does NOT bar the lawsuit. The court stays the action until the homeowner complies. Builder lawyers sometimes overstate this.
- The Recovery Fund caps doubled on January 1, 2025 for contracts signed on or after July 1, 2024. Division I per claim is now $100,000 ($50,000 for older contracts) with a $2 million aggregate per licensee ($500,000 for older contracts).
- Generic disclaimers do not waive the implied warranty of habitability. The disclaimer must be in writing, conspicuous, specific, and unambiguous. Boilerplate “as is” language does not work.
- FDUTPA applies to new home sales in Florida, unlike many sister states’ UDAP acts. But FDUTPA has no treble damages and no punitive damages — the main value is the two way prevailing party fee provision under § 501.2105.
- § 553.835 (2012) effectively killed the Maronda Homes expansion of the implied warranty to off site improvements. Roads, drainage, retention ponds, and off site utilities are now outside the implied warranty.
- HB 837 (March 24, 2023) cut general negligence limitations from 4 years to 2 years. It did NOT change the construction defect periods under § 95.11(3)(c), but it changed the broader litigation environment.
- The Recovery Fund requires a final non consent judgment, arbitration award, or restitution order — consent judgments do not qualify. The homeowner must also exhaust reasonable remedies (writ of execution) before the Fund will pay.
- The post SB 360 subsection letter varies. Some current statutory compilations recodify the construction defect provision as § 95.11(3)(b); others still publish it as § 95.11(3)(c). Both cites appear in current practice.
Download the Complete Document Package
- Legal Warranty Reference — Florida implied warranty, Chapter 558 procedure, SB 360 limitations and repose, Homeowners’ Construction Recovery Fund, FDUTPA
- Builder Defect Walkthrough Intake Form (FL specific) — room by room checklist for documenting every defect
Dealing With a
Construction Defect?
If you are a homeowner dealing with builder defects or considering purchasing a home that needs structural evaluation, Toni Schafer brings both Realtor expertise and General Contractor knowledge to help you understand what you are looking at and what your options are.