Construction Defect Claims: How a Condominium Association Pursues a Claim in Florida

Jason Hamilton Mikes, JD, MBA
Founder & Managing Shareholder

• Published September 25, 2026
• Reviewed by Jason Hamilton Mikes, JD, MBA, September 26, 2026
• Florida Statutes as of July 1, 2026
• Applies to: Condominiums

A condominium construction defect claim is a race against two clocks, run under a mandatory presuit statute, on evidence that sits inside a building the association is under pressure to repair. The board's early decisions, about who investigates, what gets preserved, when notice goes out and whether to repair first, matter more to the outcome than the eventual legal theory. Most associations that lose these claims lose them before a complaint is ever drafted.

Who owns the claim

Individual owners own claims about their own units. The association owns the claims that matter in a defect case. Section 718.111(3) authorizes the association, after control has passed from the developer, to institute, maintain, settle or appeal actions in its own name on behalf of all unit owners concerning matters of common interest, including the common elements, the roof and structural components, mechanical, electrical and plumbing elements serving an improvement or a building, and developer representations about commonly used facilities.

That list is the case. A claim about a curtain wall, a roof, a post-tensioned slab, a plumbing riser or a parking structure is the association's to bring. Owners with water intrusion inside their units may have parallel claims, but the board should not treat owner complaints as the owners' problem.

Pursuing or not pursuing is a fiduciary decision, made on information and documented. A board that lets a repose period expire on a known structural defect has a problem of its own.

First, read the declaration and the original construction documents. Arbitration clauses, venue provisions, limitations of liability and prevailing-party fee provisions often control more of the outcome than the statutes do. Our guide to contractor agreements covers the clauses worth finding early.

Warranties: what the statute gives you

Section 718.203(1) supplies implied warranties of fitness and merchantability that exist whether or not anyone wrote them down. They run to the purchaser of each unit: 3 years for each unit from completion of the building containing it, and 3 years for other improvements for the use of unit owners from their completion. Paragraph (e) matters most in a structural case. As to the roof and structural components, and as to mechanical, electrical and plumbing elements serving a building, the warranty runs 3 years, or 1 year after owners other than the developer obtain control of the association, whichever occurs last, but in no event more than 5 years.

Section 718.203(2) is the one boards overlook. The contractor and all subcontractors and suppliers grant implied warranties of fitness, to the developer and to the purchaser of each unit, running 3 years for the roof, structural, mechanical, electrical and plumbing components and 1 year after completion of all construction for everything else. The warranty runs to unit purchasers by statute, with no assignment to prove.

These periods are short and run from completion, not discovery. By the time a defect manifests, the section 718.203 warranties are often gone and the live claims are contract claims, tort claims and any express warranty in the construction contract.

What turnover should have given you

If the association is within a decade of turnover, the turnover package is the file the case is built from. Section 718.301(4) requires the developer, when unit owners other than the developer elect a majority of the board, to relinquish control and deliver a defined list, with the financial records permitted within 90 days. These items matter:

• The plans and specifications used in construction, with the certification that they represent the actual construction of the improvements.
• The certificates of occupancy, which in most cases now set the date the limitations and repose clocks started running.
• All permits issued by governmental bodies.
• The list of contractors, subcontractors and suppliers with names and addresses, which tells you whom to serve with a Chapter 558 notice.
• Written warranties still in effect, and the insurance policies.
• A turnover inspection report under seal of an architect or engineer, and the association's structural integrity reserve study.

Associations often discover that some of this was never delivered. A missing turnover package is itself a claim, and a reason to reconstruct the record from the building department file, the permit history, the county's lien records, and the association's own official records.

The two clocks, and what changed in 2023

Under section 95.11(3)(b), an action founded on the design, planning or construction of an improvement to real property must be brought within 4 years, and for a latent defect the 4 years run from when the defect is discovered or should have been discovered with the exercise of due diligence. Over that sits an absolute cutoff, the statute of repose: the action must be commenced within 7 years regardless of when the defect was discovered.

Both periods are measured from the same date, and that date is the earliest of the date the authority having jurisdiction issues a temporary certificate of occupancy, a certificate of occupancy or a certificate of completion, or the date of abandonment of construction if it is not completed.

Before Senate Bill 360 in 2023, the provision sat at section 95.11(3)(c), the repose period was 10 years, and it ran from the latest of four events: actual possession by the owner, issuance of a certificate of occupancy, abandonment of construction, or completion or termination of the contract between the engineer, architect or contractor and the employer. The amendment cut three years off the outside deadline and moved the starting gun from the last of four dates to the first of three.

The statute also provides that where a project involves multiple buildings, each building is its own improvement for purposes of the limitations period. The clock on Building A may have run while Building D still has time.

The Chapter 558 presuit process

Chapter 558 is mandatory. Section 558.003 provides that a claimant may not file an action subject to the chapter without first complying with it, and that on timely motion the court shall stay a noncompliant action, without prejudice. The association gets the longer periods because of its size.

The notice must describe each claimed defect in reasonable detail, sufficient to determine its general nature and, where known, its location. A general complaint about water intrusion invites a motion to stay months later. The claimant must also provide reasonable access during normal working hours, with destructive testing by agreement.

The written response may offer to remedy the defect at no cost, offer money, offer a combination, dispute the claim, or state that the insurer is evaluating. If a settlement offer is made, the claimant must accept or reject it in writing within 45 days. If the response disputes the claim or never arrives, the association may proceed without further notice.

An offer to repair is a real decision: accepting puts the party who built the defect back in the building under a protocol the association did not design, and rejecting a reasonable offer has consequences if the case is tried. Chapter 558 also applies unless the parties agreed in writing to opt out, so read the contract first.

Preserving the evidence, and not repairing away the proof

The association has a building that needs fixing and a claim that needs evidence, and repair destroys evidence. The board cannot always wait, but it cannot repair first and document later. Before any work touches the defective condition:

1. Retain a forensic consultant, engaged through counsel so the early work is covered by privilege to the extent Florida law allows.
2. Photograph and video systematically, with location references and dates, capturing conditions as found, during opening and after removal.
3. Retain and label physical samples of the failed material, sealant, flashing, fastener, concrete core or pipe, with a written chain of custody.
4. Document the as-built condition and how it departs from the plans and specifications. That comparison is the claim.
5. Notify the parties you may claim against before destructive work and offer them the chance to observe.
6. Issue a litigation hold covering emails, board packets, manager files, inspection reports and photographs, and suspend routine deletion.

Florida does not recognize a first-party cause of action for spoliation of evidence against a party to the litigation, which sounds like good news and is not. The remedy is applied inside the case, through sanctions, exclusion of expert testimony, or an adverse inference instruction. Where the association must repair urgently for safety, repair, and document to the standard above: an emergency repair that is photographed, sampled and noticed is an inconvenience, and one that is not often ends the claim. Our guide on litigation holds and record preservation sets out how to issue one.

The economic loss rule and what it leaves you

For years the economic loss rule was the first defense raised against a condominium defect claim: the loss was purely economic, the building was the product the association bought, and tort claims were barred. Casa Clara Condominium Association v. Charley Toppino & Sons is the high-water mark, holding that homeowners could not recover in tort from a concrete supplier because the completed home, not the concrete, was the product purchased.

In 2013 the Florida Supreme Court changed the frame. Tiara Condominium Association v. Marsh & McLennan Companies confined the economic loss rule to products liability cases. Outside that setting, a party is not barred from a tort claim merely because the loss is economic.

What replaced it is narrower but still real: a tort claim that restates a breach of contract is still treated as one, because the duty breached must be independent of the contract. That limit comes from Justice Pariente's concurrence rather than the Tiara majority, though it is settled Florida law in its own right. So the practical questions are contract questions. Who contracted with whom, what the contract promised, what warranties survive, and which parties are reachable only in tort.

Insurance, and the contractor's carrier

Three insurance questions arise, and they get confused with each other.

• The association's own property coverage. Property policies generally cover resulting damage from a sudden event, not the cost of correcting defective work. Water intrusion after a hurricane and water intrusion through a curtain wall never built to specification are different claims to different payors. See our guide to association insurance responsibilities.
• The contractor's commercial general liability coverage. Usually the real source of recovery, and the reason a Chapter 558 response so often says the insurer is evaluating. CGL policies typically exclude the cost of repairing the contractor's own defective work while covering resulting damage to other property.
• The design professional's errors and omissions coverage. Separate, usually claims-made, often with shorter practical horizons than the repose period.

Give written notice to every potentially responsible party and to the association's own carriers early, even where coverage looks doubtful, because late notice is a defense that costs nothing to raise. And do not let the property claim and the defect claim be handled by people who are not talking to each other. A release signed in one can extinguish claims in the other.

Repair first, or litigate first

This is the decision the board actually has to make. It is better framed as a sequencing question with three inputs.

1. Safety and the statutory calendar. If the condition is unsafe, or a phase two milestone report has started the 365-day clock to commence repairs under section 553.899, the repair is not optional and the only question is how to document it.
2. The repose date. Calculate it first, from the earliest certificate date, building by building. If the 7-year cutoff is close, notice and filing drive the schedule.
3. The money. Few associations can fund a full repair while waiting on a recovery that may take years, so a phased repair, a special assessment or a loan usually runs alongside the claim.

In most cases the answer is not repair or litigate. It is investigate, preserve, notice, then repair under a documented protocol while the claim proceeds. See our guide to running a major repair project.

One caution on process. Disputes between an association and its own unit owners over use of the property, elections and records go to mandatory arbitration or presuit mediation, a different regime from the claims described here. See our guide to arbitration and mediation.

Contact Hamilton Mikes

Hamilton Mikes evaluates and pursues construction defect claims for condominium associations in Lee, Collier and Charlotte Counties, from the first calculation of the repose date through the Chapter 558 process, evidence preservation, and litigation or settlement. The earlier a board calls, the more options it still has. Call 239-594-7227 or visit our Litigation and ADR page.