CopyCited 2 times | Published | Supreme Court of Florida | 2013 WL 3466814
...As provided in the decision below, such “essential services” do not include items that provide mere convenience or aesthetic beauty, such as landscaping, sprinkler systems, recreational facilities, or other similar improvements. Legislative Developments During the pendency of this case, the Florida Legislature enacted section 553.835, Florida Statutes (2012). The session law which enacted section 553.835 provides that it applies retroactively, stating that it “shall take effect on July 1, 2012, and applies to all cases accruing before, pending on, or filed after that date.” Ch.2012-161, § 3, Laws of Florida. As provided in the preamble to the session *1271 law, the purpose of section 553.835 is to abrogate the decision below, and consequently any prospective decision of this Court: WHEREAS, the Legislature recognizes and agrees with the limitations on the applicability of the doctrine or theory of implied warranty of fitn...
...anty and fitness and merchantability or habitability for a new home to include essential services as defined by the court, NOW THEREFORE, Be It Enacted by the Legislature of the State of Florida Ch.2012-161, pmbl., Laws of Fla. The plain language of section 553.835(1) states that the intent of the law is to clarify the scope of the implied warranties because courts have reached different conclusions regarding their scope, which has created “uncertainty in the state’s fragile real estate and construction industry.” Section 553.835(2) also provides that it is the “the intent of the Legislature to affirm the limitations” to the implied warranties. Section 553.835(4) provides the limitations for a cause of action for breach of the implied warranties: “There is no cause of action in law or equity to a purchaser of a home or to a homeowners association based upon the doctrine or theory of implied warranty of fitness and merchantability or habitability for damages to offsite improvements.” (Emphasis added.) Section 553.835(3) defines “offsite improvements” as: (a) The street, road, driveway, sidewalk, drainage, utilities, or any other improvement or structure that is not located on or under the lot on which a new home is constructed, excluding such...
...et, road, driveway, sidewalk, drainage, utilities, or any other improvement or structure that is located *1272 on or under the lot but that does not immediately and directly support the fitness and merchantability or habitability of the home itself. § 553.835(3)(a)-(b), Fla. Stat. (emphasis added). Thus, under section 553.835, for an individual to have a cause of action for breach of the implied warranties, he must establish that (1) the claim is regarding a new home, (2) the claim is with regard to damage to the home or a structure or improvement on or under the home’s lot, and (3) the complained of improvement or structure immediately and directly supports the habitability of the home. See § 553.835(3)-(4). Section 553.835(4) further states that it does not alter or limit a homeowner’s right to pursue any other cause of action arising from defects in “offsite improvements” originating in contract, tort, or by statute. See § 553.835(4). Lastly, the session law that created section 553.835 included a sev-erability clause: If any provision of the act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect withou...
...This Court accordingly held that the Act was substantive in nature and could not be applied retroactively to those with a vested right in an accrued cause of action under the common law. See id. at 133 . Lakeview Reserve’s Cause of Action Contrary to the view of the dissent, the application and validity of section 553.835 have been placed at issue by the parties and have been fully briefed. In a supplemental filing, Maronda Homes and T.D. Thomson contend that the newly adopted section 553.835 applies retroactively and divests Lakeview Reserve of its cause of action for breach of the implied warranties. They allege that section 553.835 now abolishes Lakeview Reserve’s cause of action because it was based on defects in improvements not on or under the home’s lot. See § 553.835(3)-(4). They also allege that the Legislature intended for section 553.835 to apply retroactively to Lakeview Reserve’s cause of action because such retroactive application is expressly provided for in the session law. See Ch.2012-161, § 3, Laws of Florida (“This act shall take effect July 1, 2012, and applies to all cases accruing before, pending on, or filed after that date.”). T.D. Thomson contends that section 553.835’s retroactive application is permissible because it is remedial in na *1274 ture and does not create new obligations or duties, but rather provides the remedy of clarification of an existing right, i.e., that the implied warranties never applied to offsite improvements. Both T.D. Thomson and Maronda Homes contend that, even if section 553.835 is substantive, it permissibly applies retroactively because it does not affect a vested right....
...District in its decision below, and therefore, did not exist at the time Lake-view Reserve’s common law cause of action accrued, thereby eliminating that action’s status as a vested right. Here, Lakeview Reserve is correct in its contention that section 553.835 is substantive and not remedial in nature because it does not simply clarify an existing right, but rather, prescribes legal duties and rights. Section 553.835 cannot be constitutionally applied retroactively to Lakeview Reserve’s cause of action because that action is a vested right. Similar to the legislation in Spiewak , which attempted to limit legal rights in an action for injuries caused by asbestos by limiting such an action to individuals who could establish a particular level of personal injury, section 553.835 attempts to limit an individual’s legal rights under an action for breach of the implied warranties by limiting such an action to only improvements specifically on or under a particular new home’s lot that immediately and directly support the habitability of the home even if the defects specifically impact the habitability of the home. Therefore, as this Court held with regard to the statute in Spiewak , section 553.835 is substantive and not remedial in nature....
...tates and the acts of the Legislature of this state”). Therefore, Lakeview Reserve has a vested right in its cause of action for the breach of the implied warranties as they existed under the common law. Lastly, we agree with Lakeview Reserve that section 553.835 cannot be applied retroactively because that application would abolish Lakeview Reserve’s vested right in its common law cause of action for breach of the implied warranties....
...clude improvements that adversely impact a new *1275 home’s lot or physical structure that provide the home with “essential services” directly affecting habitability, such as drainage or underground sewage pipes. The retroactive application of section 553.835 would offend due process because, as was the case in Spiewak , the retroactive application of the statute would abolish actions that have accrued under the common law. A retroactive application of section 553.835 would abolish Lakeview Reserve’s common law action by curtailing the scope of the action to improvements on or under a new home’s lot that immediately and directly support the habitability of the home, even if the defects directly impact the habitability of the home....
...This may eliminate part of Lakeview Reserve’s common law action because at least part of that action seeks relief for improvements that directly and adversely impact a home’s lot that provide the home with “essential services” directly affecting the home’s habitability. Therefore, we conclude that section 553.835 cannot apply retroactively because such application would offend due process by abolishing Lakeview Reserve’s vested right in its common law cause of action. In addition, Maronda Homes alleges that, regardless of whether section 553.835 applies retroactively, this Court should not apply implied warranties beyond what the statute prescribes because it is the province of the Legislature to balance public policy and define the scope of the implied warranties....
...t action unless it provides a reasonable alternative for redress of injuries, or demonstrates an overpowering public necessity for its abrogation and no other means by which to meet that necessity. See id. at 4 . Here, Lakeview Reserve contends that section 553.835 violates article I, section 21, because it abolishes the cause of action for breach of the implied warranties and fails to provide a reasonable alternative or demonstrate an overpowering public necessity for that abrogation. Maronda Homes and T.D. Thomson allege that although section 553.835 curtails the cause of action for breach of the implied warranties, it preserves other viable remedies that may exist in tort, contract, or by statute, such as negligence, misrepresentation, and rescission. Section 553.835 violates the right of access to courts because it attempts to abolish the common law cause of action for breach of the implied warranties for certain injuries to property. In section 553.835(4), the Legislature establishes its intent to abolish some implied warranties by expressly limiting a cause of action for their breach by eliminating “offsite improvements” from that action’s scope, even if such improvements impact the on-site habitability of the home. See 553.835(4), Fla....
...site improvements,” which are defined to include any improvement or structure that is not locat *1276 ed on or under a new home’s lot, and any improvement or structure that does not immediately and directly support the home’s habitability. See § 553.835(3), Fla....
...vide essential services to the Lakeview Reserve Homeowners Association. We remand this case to the trial court for further proceedings and factual determinations as may be required, all to be pursuant to and in accordance with this opinion. Further, section 553.835 does not apply to any causes of action that accrued before the effective date of this section....
