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Latent Construction Defects and the “Discovery Rule”


After a construction project is completed and the owner of the building takes ownership, the clock starts to run. This proverbial clock is also known as the statute of limitations. If there is a defect in the property, a lawsuit must be filed four years from the date the owner took possession. In other circumstances, the lawsuit claiming defect must be file when a certificate of occupancy is issued or when the construction contract is terminated. This is the rule under Florida law. However, this rule is not as simple as it seems. There are other considerations that a court must analyze if the defect is hidden.

Latent Construction Defects

Defects stemming from construction projects are rather common. Defects can arise from a failure in the design, workmanship or materials used in construction process. Some defects are readily discernible and obvious. Other defects are not easily detectable. These hidden defects are called latent defects. A latent defect is a hidden flaw, weakness, or imperfection that cannot be discovered even with reasonable inspection. An example of a hidden defect in real property may refer to a defect in the title to the land. This is a situation where the owner believes that he or she holds good title to land, which permits the erection of a structure. Another example of a hidden defect may arise when the paint used on a building is discovered to be unsustainable, but such is discovered only when the paint interacts with a naturally occurring chemical. A common defect is an inadequate foundation that causes a building to subside. Because latent defects are, by definition, not easily discernible, the statute of limitations does not apply here in the traditional sense.

The “Discovery Rule”

The “discovery rule” is a legal term of art normally used in the medical malpractice and personal injury realm. This rule contemplates a situation where the possible plaintiff is not aware of the wrong because the effects of the wrong are not easily discernible–it is latent. In such a circumstance, under Florida law, the timeframe for the statute of limitation starts on that date the construction defect is discovered or should have been discovered with the exercise of due diligence.

How the Discovery Affects the Statute of Limitations

The discovery rule effectively “tolls” the statute of limitation for plaintiffs who have latent construction defects. The tolling of the statute of limitation is another way of saying that the four year statute is stalled or will not begin to run. The trigger for the four years is the discovery of the defect because the defect is hidden. Whereas the trigger for an obvious defect is when (1) the owner takes ownership, (2) the contract is terminated, or (3) when a certificate of occupancy is issued. This rule puts the onus on building owners and inspectors to exercise diligence as to not miss an opportunity to file a claim for a construction defect.

Your Florida Construction Law Attorney 

After a construction project is completed, parties to the contract are on notice to be diligent as possible should there exist any discoverable defects. The first step is to hire an experienced construction law attorney who can advise you on the complexities of the statute of limitations governing construction defects in Florida. Attorney Brendan A. Sweeney is an experienced construction law attorney with years of experience litigating and advising on construction law issues. Contact us for a consultation.



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