Construction law

Construction disputes rarely start as disputes. They start as a delay everyone expects to make up, an invoice that will be paid next month, a crack that is probably just settling. By the time anyone uses the word "claim", the project is months further on, the people who knew what happened have moved to other jobs, and at least one deadline has usually passed.

That last part is what makes construction different from most civil work. Florida wraps the industry in notice requirements and short statutory periods, and a great many of them are unforgiving. A subcontractor with an unanswerable claim for $180,000 can lose the security for it entirely by serving one notice on day 46 instead of day 45. An owner with a genuine defect can be barred by a statute of repose that ran while they were still negotiating with the builder.

The other feature of construction work is that the contract usually matters more than the general law. Whether you can recover delay costs, whether you had to give written notice of a change, whether you must arbitrate in another county, and whether the contractor gets paid before you do are all decided by clauses signed before anyone broke ground.

This page covers how Florida construction disputes actually run: getting paid, defending payment claims, defects, and the deadlines on both sides.

What construction law covers

Construction law is less a single subject than a set of overlapping ones that happen to meet on a job site. In practice it covers:

• Disputes about payment, between owners, contractors, subcontractors and suppliers
• Construction liens: recording them, enforcing them, and getting improper ones removed
• Claims on payment and performance bonds
• Defect claims, from a leaking window to a structural failure
• Delay, disruption and acceleration claims
• Change order and scope disputes
• Contract review and negotiation before the work starts
• Disputes with licensing authorities, and problems caused by unlicensed work
• Warranty claims against builders and developers

Most matters involve more than one of these at once. A defect claim by an owner is very often answered by a lien and a payment claim from the contractor, and both proceed together.

Who ends up needing it

Four groups, with quite different problems.

Owners who have paid for work that was not done, was done badly, or has stopped altogether, and who may also be facing liens recorded against their property by people they have never dealt with directly.

General contractors caught between an owner withholding payment and subcontractors demanding it, often while carrying the cost of both.

Subcontractors and suppliers, who have the weakest position and the strictest deadlines. They usually have no contract with the owner at all, so the lien and bond statutes are their only real security.

Homeowners on residential projects, who are the least prepared for any of it. They signed a short contract they did not read closely, paid substantial deposits up front, and discover the rules only once something has gone wrong.

The contract terms that decide the outcome

Before the law does anything, the contract does. A handful of clauses decide most disputes before they begin.

• Scope and specifications. Most "defect" arguments are really arguments about what was promised. If the drawings and specifications are vague or contradict each other, both sides can be sincerely convinced they are right.
• Written change requirements. Many contracts say no extra work will be paid for without a signed written change order. Courts will sometimes find that requirement waived by conduct, but relying on that is expensive.
• Notice provisions. Clauses requiring notice of a delay or claim within a set number of days, often as few as seven or fourteen, and often stating that failure to give notice waives the claim entirely.
• Pay-if-paid and pay-when-paid. The difference matters enormously. Pay-when-paid generally affects only timing. A properly drafted pay-if-paid clause can shift the risk of the owner's non-payment onto the subcontractor altogether.
• No-damages-for-delay. Common in Florida contracts, and generally enforceable, though not where the delay was caused by the other party's own bad faith or active interference.
• Liquidated damages. A fixed daily sum for late completion. Enforceable where it is a genuine pre-estimate rather than a penalty.
• Dispute resolution. Whether you end up in court, in arbitration, and in which county.
• Attorney's fees. Florida generally follows the American rule, so each side pays its own. A prevailing-party fee clause changes the entire economics of a dispute, and the lien statute contains its own fee provision.

Licensing, and why it matters in Florida

Florida regulates contractors through the Department of Business and Professional Regulation, with certified contractors licensed statewide and registered contractors licensed locally.

The consequence of getting this wrong is severe. Florida law provides that a contract entered into by an unlicensed contractor, where a license was required, is unenforceable by that contractor, in law and in equity. That means no suit on the contract, and generally no claim in quantum meruit for the value of work actually performed. The lien rights go with it.

For an owner, discovering that a contractor was unlicensed can be a complete answer to a payment claim. For a contractor, it can mean having built the thing and having no way to be paid for it. Related problems arise where a licensed contractor allowed an unlicensed party to work under their license, which exposes the license holder to disciplinary action.

Verifying a license takes a few minutes on the DBPR site and is worth doing before signing, not after.

The construction lien

Florida's construction lien law is set out in Chapter 713 of the statutes. It exists because subcontractors and suppliers improve someone else's property while having no contract with the person who owns it. The lien gives them security against the property itself.

It is also strictly construed. The statute is a creature of legislation rather than fairness, and the courts apply its requirements as written. Substantial compliance carries you some distance on technical defects; it does not rescue a missed deadline.

The sequence usually runs like this. The owner records a Notice of Commencement before work begins and posts it at the site. Anyone not in direct contract with the owner serves a Notice to Owner. When that party finishes work and is not paid, they record a claim of lien. If it is still not resolved, they sue to foreclose the lien within a year. Along the way the owner may demand a contractor's final payment affidavit and take releases of lien with each payment.

The Notice to Owner

This is the step most often missed, and the one that most often destroys an otherwise good claim.

Anyone who is not in privity with the owner, meaning almost every subcontractor and supplier, must serve a Notice to Owner. It must be served before beginning work or within forty-five days of first furnishing labor or materials, and in any event before final payment to the contractor.

Forty-five days from first furnishing, not from the last day on site and not from the unpaid invoice. On a long project that date can fall while everything is going well and nobody is thinking about payment at all.

Miss it, and the lien right is generally gone. The contract claim against whoever hired you survives, but the security against the property does not, which on a project where the general contractor is insolvent is often the difference between recovering and not.

Recording the claim of lien

A claim of lien must be recorded in the public records of the county where the property sits, within ninety days after the final furnishing of labor, services or materials.

What counts as final furnishing is litigated constantly. Warranty work, punch list items and returning to correct your own defective work generally do not extend the period. Sending someone back to the site for an hour in order to restart the ninety days is a well-known tactic and a well-known way to lose.

The lien must be served on the owner within fifteen days of recording. It must state the amount, the work, and the parties accurately. Willfully exaggerating the amount can render the entire lien unenforceable and expose the claimant to damages, so padding a lien with disputed extras is a genuine risk rather than a negotiating position.

Enforcing a lien, and the one-year clock

A recorded lien does not last. An action to enforce it must be brought within one year of recording, unless that period is shortened.

It frequently is. An owner may record a Notice of Contest of Lien, which cuts the period to sixty days from service. An owner may also file a complaint to show cause, which requires the lienor to bring an action within twenty days. Both are inexpensive, and both convert a lienor's comfortable year into a matter of weeks.

If the deadline passes, the lien is extinguished. The underlying contract claim may survive, but the security does not.

Defending against a lien

Owners are rarely defenseless. Common answers include:

• Procedural failure. No Notice to Owner, late recording, defective service, an inaccurate lien.
• Licensing. A lien claimed by a contractor who required a license and did not have one.
• Payment. The owner has already paid, in accordance with the statute, and the lien exceeds what remains unpaid under the direct contract.
• Defective work. Setting off the cost of correcting the work against the amount claimed.
• Exaggeration. A willfully inflated lien can be defeated entirely.

An owner who needs to sell or refinance while a lien sits on the title cannot always wait for the dispute to resolve. Florida allows the lien to be transferred to a bond or to a cash deposit with the clerk. The lien then attaches to the security instead of the property, the title clears, and the fight continues without holding up the closing.

Payment bonds and public projects

Public property cannot be liened. On public work, the security is a payment bond, and Florida's public bond statute sets out its own notice regime with its own deadlines, generally a notice to the contractor early in the work and a notice of non-payment within a set period, followed by suit within a year.

Private projects can also be bonded. Where a payment bond exists on a private job, the lien may be transferred to the bond, and the claimant's remedy shifts accordingly.

The deadlines under the bond statutes are separate from the lien deadlines and are not interchangeable. Complying with one does not preserve rights under the other, and on a project where both may apply, both should be diarized.

Prompt payment

Florida has prompt payment statutes for both private construction contracts and local government contracts. They set out when payment becomes due after a proper invoice, when it may be withheld, and interest on late payment.

These provisions are useful in two ways. They give a payment claim a statutory footing rather than leaving it as a pure contract argument, and they impose a discipline on the process of withholding: an owner or contractor who wants to withhold generally has to say why, and say it promptly, rather than simply going quiet.

Change orders and extras

Almost every construction dispute contains a change order argument. The work as built is not the work as drawn, and the parties disagree about who asked for the difference and who pays.

The pattern is familiar. The owner or architect directs a change verbally. The contractor, wanting to keep the job moving, does the work and says the paperwork will follow. It does not. Months later the invoice appears and is refused on the basis that no signed change order exists.

Contractors do sometimes recover for unwritten changes, on waiver, course of dealing, or on the basis that the owner knew of the work and accepted the benefit. But the argument is harder, longer and less certain than producing a signed piece of paper would have been.

Related disputes concern differing site conditions, what was reasonably inferable from the drawings, and whether a design error is the owner's problem or the contractor's.

Delay, disruption and acceleration

Delay claims turn on three questions: how long, whose fault, and what did it cost.

Delays are usually classified as excusable or inexcusable, and as compensable or not. A hurricane may excuse a contractor from liquidated damages without entitling them to be paid for the extra time. An owner's late delivery of drawings may do both. Where both parties contributed, the delays are concurrent and each side's recovery is generally limited.

Proving a delay claim means proving the critical path, which is why these cases involve scheduling analysis and, above a certain size, a scheduling expert. Contemporaneous records decide them: daily reports, updated schedules, correspondence sent at the time rather than reconstructed afterwards.

Acceleration claims arise where a contractor is denied an extension it was entitled to and is required to finish on the original date anyway, incurring overtime and additional crews to do it.

Remember the contract clauses here. A no-damages-for-delay clause, or a notice requirement the contractor did not meet, can end a well-founded delay claim without anyone reaching the merits.

Retainage

Owners commonly hold back a percentage of each payment until the work is complete. Florida limits retainage on many contracts and regulates when it must be released, with different treatment for public and private work.

Disputes arise when retainage is withheld long after completion, often as leverage over an unrelated argument, or where the amount withheld exceeds what the statute or contract permits. For a subcontractor operating on thin margins, retainage across several jobs can be the whole of the year's profit.

Construction defects

Defect claims fall into rough categories, and the category shapes who is responsible.

• Design defects. The drawings were wrong. Responsibility usually points at the architect or engineer.
• Workmanship defects. The design was fine, the execution was not. This points at the contractor or the relevant trade.
• Material defects. The product itself failed, which brings suppliers and manufacturers into the picture.
• Subsurface and site problems. Soil, drainage, compaction and grading failures, which often surface years later.

Defects are also described as patent, meaning discoverable on a reasonable inspection, or latent, meaning hidden. The distinction matters for deadlines, because time on a latent defect generally runs from when it was or should have been discovered.

The most common claims in South Florida involve water: roofing and flashing failures, window and door installation, stucco cracking and delamination, balcony and deck waterproofing, and plumbing. Water intrusion is expensive because it rarely stays where it started, and because remediation usually requires opening up finished work.

The notice you must send before suing

Florida requires a pre-suit process for construction defect claims, set out in Chapter 558 of the statutes. Before filing an action, a claimant must serve a written notice of claim describing the defects in reasonable detail, and must wait out a statutory period before suing.

The recipient may inspect the property, and may then respond by offering to repair, offering to settle for money, disputing the claim, or some combination. Associations bringing claims on behalf of many units have a longer period.

This is not a formality. Filing suit without complying can result in the action being stayed or dismissed, and the notice itself has to be adequate. A notice that identifies defects too vaguely may not do its job.

The process cuts both ways. It is an opportunity for an owner to get a repair without litigation, and an opportunity for a builder to fix a problem at cost rather than defend a claim at retail. A number of matters end here.

Limitations and the statute of repose

Two separate clocks apply to construction defect claims, and they behave differently.

The statute of limitations gives a set number of years to sue, running from completion or, for a latent defect, from when the defect was discovered or should have been discovered with the exercise of due diligence. Florida's period for actions founded on the design, planning or construction of an improvement to real property is four years.

The statute of repose is an outer limit that runs regardless of discovery. Once it expires, the claim is barred even if the defect was genuinely undiscoverable until the day it was found. Florida shortened this period in 2023 and also changed the event it runs from, so which version applies depends on the timing of your project and when the claim arose.

That change matters. Owners who assumed they had a decade may have considerably less, and the difference between the old and new triggers can move the deadline by a year or more. If a project was completed anywhere near the edge of these periods, the dates need to be worked out precisely rather than estimated.

Different periods again apply to contract claims, bond claims and lien enforcement, and a single dispute can easily involve several running at once.

Building code violations

Florida provides a statutory cause of action for damages caused by a violation of the Florida Building Code, which can be brought against the party responsible for the violation.

This is useful because it does not depend on a contract. An owner who bought the property later, and who never dealt with the builder, may still have a route where the work does not comply with the code in force when it was built.

Code claims are technical and turn on expert evidence about which code provision applied and how the work departed from it. They frequently sit alongside a contract or warranty claim rather than replacing it.

Warranties, new homes and condominiums

Warranty rights come from three places: the written warranty in the contract, warranties implied by law, and statute.

Florida recognizes implied warranties of fitness and merchantability in the sale of a new home by a builder-vendor, which cover the home's suitability for habitation. Their scope is narrower than owners expect, and they do not extend indefinitely.

Condominiums have their own statutory scheme. The developer and the contractor give warranties on the units and the common elements, running for defined periods from completion or from turnover of control to the unit owners. Association claims are a substantial part of construction litigation in South Florida, and the transition period after turnover is when problems tend to surface, precisely when a new board is least equipped to deal with them.

Written warranties should be read for what they exclude. Exclusions for normal settling, for owner maintenance, and for consequential damage do a great deal of work.

Water intrusion, stucco and storm damage

In this part of Florida, the same building can present a defect claim and an insurance claim at once, and the two are frequently in tension.

An insurer facing a claim for water damage has an obvious interest in characterizing the cause as defective construction, which most policies exclude. A builder facing a defect claim has an equally obvious interest in attributing the damage to a storm. The owner is in the middle, and can find both parties pointing at each other while the building continues to deteriorate.

The practical advice is unglamorous and effective. Photograph everything, at the time, with dates. Keep the failed materials rather than discarding them. Get an independent assessment of the cause early, before repairs destroy the evidence, and before either the insurer or the builder establishes a version of events unopposed.

Where the loss is primarily an insurance question, the homeowners insurance page sets out how those claims are handled.

When an insurer is involved

Insurance shapes construction disputes more than most participants realize, because it determines whether there is anything to recover.

Contractors carry commercial general liability cover. Whether it responds to a defect claim is a recurring question: the policy is not a performance guarantee, and cover for the cost of correcting the contractor's own defective work is usually limited or excluded, while resulting damage to other property is more often covered.

Design professionals carry professional liability cover, which operates on a claims-made basis, so the timing of notice matters. Owners hold property cover. Additional insured endorsements, indemnity clauses and waivers of subrogation determine who ultimately bears a loss.

An early view of what insurance exists behind each party is often more useful than an early view of the merits. A perfect claim against an uninsured, insolvent contractor is worth very little.

Arbitration and mediation clauses

Many construction contracts, particularly those based on standard industry forms, require mediation as a condition precedent and then arbitration rather than court.

Arbitration has real advantages: a decision-maker who understands construction, more control over timing, and privacy. It also has real costs. The arbitrators are paid by the parties, discovery is narrower, and the right to appeal is close to non-existent, so an adverse award is generally final even where it is plainly wrong.

The clause also decides venue, the number of arbitrators, and which rules apply. Whether third parties can be joined matters a great deal on a project with several contracts: a general contractor may find itself arbitrating with the owner and litigating with a subcontractor over the same facts, in two forums, at once.

These clauses are negotiable before signing and binding afterwards, which is a good reason to read them at the right end of the project.

Evidence and experts

Construction cases are won on documents and expert evidence rather than on recollection.

The records that matter: the contract and every addendum, the drawings and specifications with their revisions, submittals and shop drawings, requests for information, change orders including the refused ones, daily reports, schedules and updates, inspection reports, photographs, invoices and payment applications, and correspondence written at the time.

Experts are usually necessary. Depending on the case that can mean a general contractor or engineer on standard of care, a scheduling analyst on delay, a cost estimator on the value of repair, and sometimes a moisture or building envelope consultant on causation.

Destructive testing, opening up finished work to see what is behind it, is often the only way to establish what went wrong. It has to be planned properly, with notice to the other parties so they can attend, because testing carried out unilaterally can be attacked later as having destroyed the evidence.

How these disputes actually resolve

Most resolve by agreement, and there are structural reasons for that.

Construction litigation is expensive because it is document-heavy and expert-heavy. The cost of proving a $200,000 defect claim can approach a meaningful fraction of the claim itself. Multi-party cases compound this, because each defendant brings its own counsel and its own experts.

The parties also frequently have a shared interest in the building being fixed. A repair carried out at a contractor's cost is worth more to an owner than a judgment for the retail cost of the same repair two years later, and costs the contractor less than defending.

The Chapter 558 process, mediation, and in some cases a joint inspection with all parties present, resolve a substantial share of matters. What tends to prevent settlement is not disagreement about the facts but a party with no insurance and no assets, or a deadline that has already passed and destroyed the leverage.

What to do next

If you are in a construction dispute, or think one is coming, the first questions are always the same: what does the contract say, what has been paid, and what deadline is running right now.

Bendel Law assists owners, contractors, subcontractors and suppliers with Florida construction matters: reviewing and negotiating contracts, preserving and enforcing lien and bond rights, defending and removing improper liens, pursuing and defending defect and warranty claims, handling the pre-suit notice process, and taking disputes through mediation, arbitration or court as the contract and the circumstances require.

This page is general information about Florida construction law. It is not legal advice for your situation, several of the statutory periods described here were amended in recent years and which version applies depends on your project's dates, outcomes turn on the particular contract and facts, and reading this page does not create an attorney-client relationship.