Construction Update – 5th DCA Holds that Claims Against Unlicensed Contractors are Governed by the Statute of Limitations Applicable to Construction Contracts

June 7, 2016 by on News

In 2003 the Florida Legislature substantially amended section 489.128 of the Florida Statutes.  Perhaps the most significant impact of this amendment was the unequivocal statement that unlicensed contractors may not enforce construction contracts “in law or equity.”  The Florida Supreme Court has acknowledged that the amended statute imposes “draconian” restrictions and “greatly disadvantages” unlicensed contractors.  Earth Trades, Inc. v. T&G Corp., 108 So. 3d 580 (Fla. 2013).

Through its recent opinion, the 5th DCA has determined that unlicensed contractors may raise the statute of limitations applicable to construction contracts as a shield, even if the legislature has taken their sword.  Brock v. Garner Window & Door Sales, Inc., 41 Fla. L. Weekly 571 (2016).  The basic facts of Brock are straightforward.  Brock brought an action for defective window installation after the windows installed by an unlicensed contractor leaked.  The action was brought more than 4 years after the cause of action accrued, but less than 5 years after it had accrued.

The trial court, applying section 95.11(3)(c), the 4 year statute of limitations applicable to actions “founded on the …construction of an improvement to real property,” dismissed the homeowner’s action as untimely.  On appeal, the homeowner argued that the unlicensed contractor could not benefit from the 4 year limitations period and asserted that the standard 5 year limitations period for written contracts applied.  The 5th DCA disagreed, and affirmed the trial court’s ruling.

The 5th DCA rejected the homeowner’s attempt to rely upon section 489.128, observing that the statute makes no mention of an unlicensed contractor’s ability to raise defenses.  The appellate court similarly rejected the homeowner’s “novel” argument that section 95.11(3)(c) only applies to licensed contractors because the statute specifically references “licensed contractors.”  Here, the court reasoned that the statutory reference to licensed contractors was merely part of the discussion of potential “triggering events” commencing the running of the statutory period.  Specifically, the statute states that one of the potential triggering events is the “date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor…”  This language, the court concluded, did not indicate a legislative intent to limit the application of the statute to licensed contractors

It is noteworthy that Judge Berger wrote a lengthy dissent embracing the homeowner’s “novel” argument.  Judge Berger asserted that the reference to licensed contractors in section 95.11(3)(c) unambiguously showed the legislature’s intent to restrict the application of the statute to contracts with licensed contractors.  As Judge Berger observed, the legislature did not have to put the word “licensed” in front of the word “contractor,” but they did, so it must have meaning.  Whether Judge Berger’s dissent sways other district courts of appeal remains to be seen.


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Randy R. Dow
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