Developer Liability for Building Code Violations Under Section 553.84, Florida Statutes
Among the numerous causes of action available to construction defect plaintiffs in the State of Florida, there is Florida Statute Section 553.84, which creates a statutory cause of action for owners based on violations of the Florida Building Code against parties who “committed” the violation.
Defering Responsibility to Other Parties
In construction defect litigation, defendants will typically defer responsibility to other parties involved in the construction or design of the project, and developers in particular are likely to blame the contractors that they hired to perform the work for such violations. However, Florida Statutes do not provide any exception for developers for Section 553.84 liability, and a developer can indeed be deemed responsible for Building Code violations so long as the plaintiff can demonstrate at trial that the developer was involved in “committing” the violations, and so long as the plaintiff can demonstrate that the developer “knew or should have known that the violation existed.”
Attempts at Disposing Violation Claims
In attempts to dispose of Building Code violation claims in active construction defect litigation, developers typically cite to a series of cases where Courts have found developers not liable for Building Code violations and/or related safety violations on project sites; however, these cases do not shield developers from liability, and instead involve situations where the Court or a jury had already evaluated factual findings regarding the developer’s specific role at the project and determined that the developer did not contribute to the violations. These cases do not hold that developers cannot be liable for Building Code violations as a matter of law.
A jury can find that a developer “committed” the violation and that they “knew or should have known” of the violation. This entirely depends on the developer’s role at the project, whether the developer acted as a “developer-builder” and was actively involved, or whether the developer acted merely as a “developer-lender” and simply financed the project. If the developer simply hired and paid the general contractor and architect to do the work, and had no active involvement in the construction or design phases of the project, a jury may find that the developer could not have “committed” the violation, and therefore, could not be liable for Section 553.84 Building Code violations. Alternatively, based on that lack of involvement, the jury could reasonably find that the developer did not commit the violation or could not have known that such violations existed.
However, to the extent a developer actually participates in the monitoring, inspecting or supervising of construction activities, a jury could find that the developer has responsibility for the violations. Typically, developers might retain owner’s representatives, project managers or consultants who take active roles on the project. On large projects, developers often ensure that these individuals are on site at all times during the construction, and in many instances, providing direct instruction to the contractors on how to perform their work. Developers and their representatives often make crucial decisions during the design phase of construction projects, selecting the types of materials or systems to be installed. In addition, in the very early stages of a project, developers often retain outside acoustical, lighting, geotechnical, landscaping, and/or other consultants to make recommendations for the design and construction of the project and, as the “owner” of the project, have the discretion to either accept or reject recommendations made by those consultants.
In sum, depending on the developer’s actions, recommendations, approvals, or rejections during the course of a construction project, the developer could very well “commit” or contribute in some way to Building Code violations at a project. When a developer issues directives or instructions to its contractors or design parties that go against the direct recommendations of those parties or outside consultants, a plaintiff could certainly prove at trial that the developer “knew or should have known” that the code violations existed.
Consult with Construction Litigation Attorneys
While overseeing a project, there are steps developers can take to ensure that they protect themselves from liability for Building Code violations. In order to protect against and/or minimize liability under Section 553.84, it is crucial to consult with experienced construction litigation attorneys who can assess the developer’s risk for such liability and make recommendations to minimize such risk. To learn more, contact Jacob Epstein at firstname.lastname@example.org.