Legal Question in Real Estate Law in Florida
Latent Defects
We own a home built in 2000. It has been found and an engineering study has been completed that proves the tile floor in our home was inproperly installed and has failed. We have contacted the builder and of course they stood behind the 2-10 Home Warranty. We have since researched and feel we may have remedy under the Florida Statute Chapter 558. The builder today verbally agreed to forego the 60-day waiting period per the Statute, but claims we MUST Arbitrate via the 2-10 HOW.
Is this true, or do we file a lawsuit. I feel the builder doesn't want a suit filed. We feel very strongly that we will prevail with the professional findings we have and the knowledge of similar failure in homes next door that the builder replaced their floor and do not want to draw this out any longer than possible. We fear the builder may file BK.
Are we required to follow the HOW policy (note: we are not the original home owners) or can we file suit referencing Florida Statute Chapter 558-Construction Defects
2 Answers from Attorneys
Re: Latent Defects
First, there is no independant cause of action for violating chapter 558. Chapter 558 is only a method for how to handle defects and allows the parties to first try to meet and discuss their alleged construction defects.
Second, if you did not sign the Home Warranty it may be difficult to force you into an arbitration. However, if you are seeking the same rights and benefits under the contract, and the contract has a valid and enforceable arbitration clause, then you may be required to go to arbitration. The answer will depend on how the arbitration clause was written.
I typically file lawsuits, and if the otherside fails to move to stay the case pending arbitration then the lawsuit will proceed in the courts.
However, arbitration is not necessarily a bad place to be, so if you are looking for a forum, you may want to reconsider being in arbitration.
Good Luck,
Randall Gilbert,
Board Certified Construction Litigator
www.TheConstructionLawyers.com
Re: Latent Defects
Most home warranties contain an arbitration clause. If yours does, then arbitration is mandatory, no matter how successful you think your lawsuit may be. If you file your lawsuit without going to arbitration first, your lawsuit can be dismissed, and sanctions (like attorneys' fees) can be imposed against you.
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