Construction Contract Statute of Repose

When does the statute of repose begin to run for construction contracts in Florida?

In Cypress Fairway Condominium v. Bergeron Construction, 2015 WL 2129473 (Fla. 5th DCA 2015), the Fifth District Court of Appeal held that the statute of repose commenced to run on the date of completion of the contract — which was the date that final payment was made under the terms of the contract.

Under Florida’s statute of repose (section 95.11(3)(c)), an action founded on the design, planning, or construction of an improvement to real property must be commenced within 10 years after the latest of: (a) actual possession by the owner; (b) the date of issuance of a certificate of occupancy; (c) the date of abandonment of construction if not completed; or (d) the date of completion or termination of the contract between the engineer, architect, contractor and his or her employer.  This is the last date that a party can bring an action for latent defects.

In Cypress Fairway, the parties were arguing about whether the date of completion or termination of the contract occurred when construction was completed (earlier date) or on the date final payment was made (later date).   If the earlier date was used the action was untimely; if the later date is used then it was timely. The court held that the statute states “completion . . . of the contract”.  Although construction completed on January 31, 2001, the statute of repose began on February 2, 2001 when the final payment was made.