Is This Construction Contract’s Venue Provision Enforceable?

Is this construction contract’s venue provision enforceable?

It is important to review your venue provisions in your construction contracts to make sure they are enforceable.  Pursuant to section 47.025, Florida Statutes, “[a]ny venue provision in a contract for improvement to real property which requires legal action involving a resident contractor, subcontractor, sub-subcontractor, or materialman, . . .to be brought outside [of Florida] is void.”  Where the provision is void, venue shall be brought where the property is located, where the defendant resides, or where the cause of action accrues.

So here is what the statutes says:

  • If one party to a construction contract is a resident of Florida; and
  • If the construction contract has a venue provision outside of Florida;
  • Then that provision is void.

Does it matter if the contract also has a choice of law provision – applying the law of another state?

No.  In Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So. 2d 610 (Fla. 5th DCA 2000), the Fifth District Court of Appeal held that section 47.025 is procedural and not substantive.  When a law is procedural the court applies the law of the forum rather than the law selected by the parties.  Therefore, for purposes of applying section 47.025, it is irrelevant as to whether the parties have a choice of law provision in their construction contract.  So, if a Florida resident contractor enters into a Florida construction project, and there is a provision in the contract which applies the law of a different state and requires venue in another state, that provision is void and litigation can proceed in Florida.