Statute of Limitations Defense Remains Available to Unlicensed Contractors

In order to minimize unlicensed contracting, the Florida Legislature and Courts have developed a variety of penalties. Nevertheless, in March of 2016, Florida’s Fifth District Court of Appeals confirmed that an unlicensed contractor is not precluded from asserting a four-year statute of limitations defense under Section 95.11(3)(c)¹. See Brock v. Garner Window & Door Sales, Inc., 2016 WL 830452 (Fla. 5^th DCA Mar. 4, 2016).

In Brock v. Garner Window & Door Sales, Inc., the homeowners experienced water intrusion through their windows and sued the contractor that installed the windows. The issue rested in the fact that the homeowners sued the window installer more than four years but less than five years after they discovered the defect. As discussed below, the homeowners asserted that the five-year statute of limitations applied to written contracts should control because the window installer was not a licensed contractor and therefore should not benefit from Section 95.11(3)(c)’s shorter statute of limitations.

The Appellants in Brock attempted to make two arguments for denying an unlicensed contractor the Section 95.11(3)(c) statute of limitations defense. First, the text of Section 95.11(3)(c) expressly includes the term “licensed contractor.” However, the Court concluded that the use of the term “licensed contractor” references when the statute begins to run, rather than the actions to which Section 95.11(3)(c) applies. Furthermore, the Court noted that the term “licensed contractor” is not used in the latent defect part of the statue; therefore, an unlicensed contractor is not precluded from invoking Section 95.11(3)(c) to an action founded on latent defects, such as the window defects in Brock.

Next, the Appellants argued that unlicensed contractors are precluded from asserting statutory defenses, citing Florida Statute Section 489.128 and Earth Trades, Inc. v. T&G Corp., 108 So. 3d 580 (Fla. 2013). The Brock court declined this argument, holding that both Section 489.128 and the Earth Trades Court do not prohibit an unlicensed contractor from asserting a statutory defense, rather they merely preclude an unlicensed contractor from enforcing a contract.

Based on the foregoing, owners should pay careful attention to the statute of limitations and all contractors should not overlook the application of section 95.11(3)(c) during the preparation of their defenses.

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¹ Section 95.11(3)(c) states, “An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.”