Punch List Items
So you’ve decided to improve your property by building a new home. You’ve closed on the property, turned in your punch list items, obtained your Final Contractors Affidavit and now you’re waiting on the builder to come back and fix those items you listed on the punch list. You wait and wait for a telephone call from the builder, subcontractor or someone to make an appointment to come to your home and fix those minor but irritating problems, but no call is forthcoming. You call the builder and hear promises about how they’ll be right out to fix the punch list items, but the “be right out” never seems to materialize and you finally realize that you are on your own. You decide to fix the problems yourself and after it is all done, the total amount of expenditures by you is $4,000.00 not including your time. What can you do to recover those costs.
Let’s first define the term “punch list” items. This term is a phrase that is used in the building industry that references minor repairs to construction defects that do not affect the structure or substantial completion of a project. These usually involve adjustments to cabinets, windows and doors, minor painting of small areas that were missed, nicks to the wall or bathtub, and electrical switches that may be malfunctioning. These items are generally determined during your walk through inspection of your new home prior to closing. Although it’s true that these items usually do not affect the structure of a construction project, they are irritating because you did not get what you were promised. After all, when you purchase a new car, you expect it to be without any dents or scratches that are visible to you.
Your options to recover your costs are limited to the remedies available in your contract or law. In your contract you should look for an express warranty from the contractor that states that the materials and workmanship will be free from defects for a period of one year from completion. You should also look for language in your contract that discusses punch list items and the timeline that your builder states that they will be fixed. Assuming language of this sort is contained in your contract, you may still not be able to head down to your nearest court of law and file suit for damages.
Florida law requires that prior to filing suit against a builder, you must serve notice of your intent to bring suit and give the builder, subcontractor or supplier an opportunity to respond to your notice at least 60 days prior to filing suit. The problem with this particular law is that it does not make a distinction between punch list items and defects. However, to be safe, it is suggested that it be applied to punch list items as well because the statute is so broad that it could be construed to include those irritating punch list items. Therefore, if you want to hold your builder accountable for those minor repairs that were not completed (we’ll call them defects) following closing, you will need to follow the following procedures:
- You must serve notice on the builder, subcontractor, supplier or design professional that you intend on filing suit against them;
- You must serve the notice at least 60 days prior to filing suit;
- The notice must refer to Chapter 558 of the Florida Statutes;
- The notice of claim must describe the defect in enough detail that the builder, subcontractor, supplier or design professional can determine the general nature of the defect and a description of the damage or loss resulting from the defect, if known. The reason for this requirement is that it gives the builder, subcontractor, supplier or design professional the ability to determine if they are truly the ones responsible for examining the defect and if not, they can refer it to the responsible party.
Within 30 days after receipt of the notice of claim, the person or entity receiving the notice is entitled to perform a reasonable inspection of the property containing the defect to assess its extent. You must also provide reasonable access to your property such that the builder, subcontractor, supplier or design professional can perform an adequate inspection of the defect. If the person served with the notice determines that they are not the party responsible for the defective workmanship, they may forward a copy of the notice to the contractor, subcontractor, supplier or design professional that they reasonably believe is responsible for each defect specified in your notice. This procedure must occur within 10 days of receipt of the notice. The receiving builder, subcontractor, supplier, or design professional is also given a right to inspect the property to determine the extent of the defect and their role in causing it.
Within 45 days of receipt of the notice, the builder, subcontractor, supplier or design professional who originally received the notice from you must serve a written response to you. The written response must provide:
- A written offer to remedy the defect at no cost to you, including a detailed description of the proposed repairs necessary to remedy the defect, and a timetable for completion of such repairs; or,
- A written offer to compromise and settle by monetary payment. This offer is made such that it will not obligate the person’s insurer and the offer must contain a timetable for making said payment; or,
- A written offer to compromise and settle by a combination of repairs and monetary payment that will not obligate the persons insurer along with a detailed description of the proposed repairs, a timetable for the completion of such repairs and when payment will be made; or,
- A written statement that the person disputes the claim and will not remedy the defect or compromise and settle the claim; or,
- A written statement that a monetary payment, including insurance proceeds, if any, will be determined by the builders, subcontractor, supplier or design professional’s insurer within 30 days after notification to the insurer. As the homeowner you can either accept or reject this offer. The written statement under this paragraph may also include an offer under paragraph (3) above, but such offer shall be contingent upon you also accepting the insurer’s willingness to make any additional monetary payment. If the insurer for the builder, subcontractor, supplier or design professional makes no response within the 30 days following this response, you shall be deemed to have met all conditions necessary to begin filing suit to recover your damages.
It is also suggested that prior to sending your notice and filing suit you do not have any person or entity (other than the persons served with notice) begin working on your defects until you have exercised the above timelines and procedures unless the repair is an emergency (e.g. leaking roof, electrical shorts, leaking plumbing).
If you have followed the above procedure and no response is forth coming, you may without further notice, file suit against that person or entity for the defects described in your notice. On the other hand, if you receive a settlement offer, you must accept or reject the offer by serving written notice to the person or entity that made the offer. Your acceptance or rejection must be served to the offering party within 45 days after receiving the settlement offer.
As you can see, there are hurdles you will have to consider before bringing suit against your builder for those major and minor defects you uncover after moving into your new residence. By following the above steps, you’ll experience less frustration by not having the courts delay your suit until you’ve exercised the requirements contained in Chapter 558 of the Florida Statutes. If you are not certain what to do, consult with an attorney who can give you some guidance and other recommendations to resolving your dispute.