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HOMEOWNER REQUIREMENT TO MAKE REPAIRS TO DEFECTIVE CONSTRUCTION

South Florida represents one of the most active traditional home and condominium markets in the United States. In recent years South Florida has added many thousands of new residential units to existing inventories of properties available to homebuyers. 

  Nearly all purchases of new units include developer and contractor guarantees regarding completeness and quality of construction. Condominium construction is further the subject of Florida Statute 718.203 imposing minimum guarantee requirements as a matter of law. Regarding preowned residences, many contracts include language requiring certain compliances and these issues can be the subject of additional agreements between buyer and seller. 

  Even when guarantee wording is clear, when construction is unfinished or when the final product is defective, an issue arises as to a homeowner’s requirement to perform certain remedial work where the seller, developer, and/or contractor will not. 

  In general Florida law does not require an injured party to undertake repair of defective work where that responsibility is contractually or otherwise the responsibility of others. Going back to the early case of Sullivan vs. McMillan 19 Southern 340 (Fla. 1986) the duty to undertake actions to prevent or mitigate damages was held not to apply in circumstances where the contract did not require any great portion of time or personal attention of the parties to complete. 

  In the more recent Florida Supreme Court case of System Components vs. FDOT, 14 So.2d 967 (Fla. 2009) the Florida Supreme Court dealt with the special situation of eminent domain but reviewed the law generally regarding mitigation as follows: 

  “The doctrine of avoidable consequences, which is also somewhat inaccurately identified as the “duty to mitigate” damages, commonly applies in contract and tort actions. See generally 17 Fla. Jur.2d, Damages, §§ 103–04 (2004). There is no actual “duty to mitigate,” because the injured party is not compelled to undertake any ameliorative efforts. The doctrine simply “prevents a party from recovering those damages inflicted by a wrongdoer that the injured party could have reasonably avoided.” The Florida Bar, Florida Civil Practice Damages § 2.43, at 2–30 (6th ed.2005) (emphasis supplied) (citing Sharick v. SE. Univ. of Health Scis., Inc., 780 So.2d 136 (Fla. 3d DCA 2000); Graphic Assocs., Inc. v. Riviana Rest. Corp., 461 So.2d 1011 (Fla. 4th DCA 1984)). The doctrine does not permit damage reduction based on what “could have been avoided” through Herculean efforts. See, e.g., Thompson v. Fla. Drum Co., 651 So.2d 180, 182 (Fla. 1st DCA 1995) (“Extraordinary efforts on the part of a plaintiff to mitigate are not required.”), approved, 668 So.2d 192 (Fla.1996). Rather, the injured party is only accountable for those hypothetical ameliorative actions that could have been accomplished through “ordinary and reasonable care,” without requiring undue effort or expense. Graphic Assocs., 461 So.2d at 1014 (the doctrine “prevents a party from recovering those damages inflicted by a wrongdoer which the injured party ‘could have avoided without undue risk, burden, or humiliation.’ ” (emphasis supplied) (quoting Restatement (Second) of Contracts § 305(1) (1979))); Royal Trust Bank of Orlando v. All Fla. Fleets, Inc., 431 So.2d 1043, 1045 (Fla. 5th DCA 1983) (substantially similar). System Components supra at 976. 

   In particular circumstances a court will examine the cost and involvement of the work needed and whether it can be undertaken “without undue risk(or) burden” and whether it can be accomplished with “ordinary or reasonable care” as opposed to “extraordinary and or Herculean efforts”. 

  Such determinations can turn on highly specific facts to a controversy and homeowners are best advised to discuss these issues with an experienced construction litigator to make the right decision in a particular case.

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