Miami Private InvestigationsBefore filing a construction defect action in Florida, the claimant must serve a written notice of claim referring to chapter 558 on the contractor, subcontractor, supplier or design professional, as applicable, at least 60 days before filing, or 120 days for an association representing more than 20 parcels (s. 558.004(1)(a), F.S.). The notice must describe each alleged defect in reasonable detail and identify its location, based on at least a visual inspection by the claimant or its agents (s. 558.004(1)(b)). A suit filed without complying is stayed on timely motion (s. 558.003, F.S.). The pre-notice investigation answers three questions: who built, designed and supplied the work, under which legal names; what the public record shows about permits, licences and complaints; and what the defects look like, documented well enough to be found.
This article is about property-damage claims. Chapter 558 does not cover claims for personal injury arising from a defect (s. 558.002(1), F.S.); for those, see our pre-suit investigation checklist for personal injury attorneys. Our main guide to pre-suit investigation covers the general approach.
Who has to receive a Chapter 558 notice?
The statute’s definitions set the field (s. 558.002):
- Contractor: a person legally engaged in the business of designing, developing, constructing, manufacturing, repairing or remodeling real property.
- Subcontractor: a contractor who performs labor and supplies material on behalf of another contractor.
- Supplier: a person who provides only materials, equipment or other supplies.
- Design professional: a person licensed in Florida as an architect, landscape architect, engineer, surveyor or geologist, or a registered interior designer.
If the claim arises from work done under a contract, the notice must be served on the person the claimant contracted with (s. 558.004(1)(a)). That party may then forward a copy, within 10 days (30 for a large association), to others it believes are responsible for specific defects (s. 558.004(3)). Relying on the general contractor to bring everyone in is a choice, not a plan; the attorney is better placed knowing the full cast before deciding whom to notice directly. Claimants include subsequent purchasers and associations (s. 558.002(3)), who often have no contract file at all.
How does an investigator identify every responsible entity?
Construction projects generate a paper trail, and most of it is public:
- Building permits and inspections. The county or municipal building department’s permit records list the permit holder, the scope, trade permits for roofing, plumbing, electrical and mechanical work, inspection results and the certificate of occupancy or completion date. Trade permits are often the fastest route to the subcontractors.
- Licensing. The Department of Business and Professional Regulation’s public licence records show who holds a contractor or design licence and its status. A business organization contracts through a qualifying agent, and the application names the entity, its officers and any fictitious name (s. 489.119(2)(a), F.S.). Whether the contractor was licensed for the scope of work matters: contracts entered into by an unlicensed contractor are unenforceable by that contractor (s. 489.128(1), F.S.).
- Legal names. Division of Corporations records on Sunbiz give the exact entity name, status, officers and registered agent; fictitious-name filings link trade names to owners. Builders often use a separate entity for each project, and some are dissolved after closing.
- Recorded documents. Notices of commencement, construction liens and releases in the county official records frequently name the owner, contractor, surety and lienors — a ready-made list of who worked on the job and who supplied materials.
- Prior complaints and suits. DBPR disciplinary history and court records of other defect claims against the same builder or trade, which inform the attorney’s evaluation.
Our corporate due diligence work uses the same methods to map related entities and their officers.
What should the defect documentation look like?
The notice has to locate each defect well enough that the responding parties can find it without undue burden, and the claimant has no obligation to do destructive or other testing for the notice (s. 558.004(1)(b)). That is a documentation standard, not an engineering one. An investigator’s photographs and video should be dated, taken with scale and context shots, keyed to a floor plan or unit and elevation map, and logged so each image ties to a numbered defect. Engineers and other experts answer cause and repair; the investigator’s record shows what was visible and where.
Defects can be added. The notice may include multiple defects and be amended as new ones become known, but the case proceeds to trial only on defects that were noticed or are reasonably related to them (s. 558.004(11)). A thorough walk-through before the first notice reduces the amendments later.
Which homeowner and HOA statements matter?
Owners and residents know when leaks started, which repairs were attempted and who came out to look. An investigator takes their statements early and collects what they kept: emails with the builder, warranty requests, service-call records, repair invoices and their own photographs. For associations, board minutes, maintenance logs and owner complaint records help fix when a problem was first noticed. Former project staff and trade workers who have moved on can be located through lawful public-record research.
What are the response windows after the notice is served?
“Service” means certified mail with a USPS record of delivery or attempted delivery to the last known address, hand delivery, or a courier with written evidence of delivery (s. 558.002(9)), so confirming addresses is part of the work. After service, the recipient may inspect within 30 days (50 for a large association) (s. 558.004(2)). Parties it forwards the notice to respond to it within 15 days (30) (s. 558.004(4)). The recipient must serve a written response on the claimant within 45 days (75): an offer to repair, an offer to pay, a combination, a statement disputing the claim, or a statement that its insurer will decide on payment (s. 558.004(5)). If it disputes the claim or does not respond in time, the claimant may proceed without further notice (s. 558.004(6)); a timely offer must be accepted or rejected within 45 days (s. 558.004(7)).
Either side may also request, citing s. 558.004(15), an exchange within 30 days of design plans, specifications, as-built plans, photographs and videos, expert reports, subcontracts, purchase orders and maintenance records. A well-organized investigation file makes the claimant’s side of that exchange straightforward.
How do limitations and repose affect timing?
Serving the notice tolls the limitations period as to persons covered by chapter 558 and any bond surety, generally until 90 or 120 days after service, or 30 days after an accepted repair or payment period ends (s. 558.004(10)). It does not toll any statute of repose (s. 558.004(1)(d)). Under s. 95.11(3)(b), F.S., an action founded on the design, planning or construction of an improvement to real property has four years, running from the certificate of occupancy or completion (or from discovery, for a latent defect), and in any event must be commenced within seven years. Those dates come from permit records, which is one more reason to pull them first. The statute also asks claimants to endeavor to serve notice within 15 days after discovering a defect (s. 558.004(1)(c)).
For how we scope this work with law firms, see our approach to investigating a case before filing and our services for attorneys. Miami Private Investigations is licensed in Florida under agency licence A1800135. Attorneys can call (305) 686-7826 or contact us for a confidential consultation.