What is a Design Defect?

Discovering construction defects in a building project can be a frustrating experience for any property owner. These defects can arise from inadequate planning, substandard workmanship, and defective materials. Design defects are a type of construction defect related to a structure’s design and planning. Learn more about design defects and what to do if your home or business structure has a design defect below. 

What is a Design Defect?  

According to Florida Statute 558.002(5), design defects are deficiencies that affect a structure’s functionality, safety, or durability due to the planning, supervision, observation, repair, remodeling, or design specifications. Design defects occur when errors in project planning make the building dysfunctional or dangerous, even though the building is constructed according to the approved plans. If the design defect is caught early, it can sometimes be remedied by redesigning the structure and fixing the problem during construction. However, if the design defect isn’t detected during construction, it can cause serious property damage and injuries to those utilizing the property.  

Types of Design Defects  

There are several common types of design defects that can be easily overlooked during the planning phase of a construction project:  

Inferior Structural Support  

This occurs when the design doesn’t account for the necessary load-bearing requirements, resulting in weak or unstable structures that could break, fall, or collapse.  

Insufficient Lighting 

Personal injuries such as slips and falls can occur in places with low lighting. In some cases, the lighting could be a design flaw, such as not providing enough overhead fluorescent lighting at the entrance of a retail store and not having enough natural light to provide a safe environment for customers and employees.   

Lack of Accessibility  

Buildings must follow a list of requirements to make them accessible to everyone. Narrow doorways, lack of ramps or elevators, and improper placement can be design defects that make the building not ADA compliant, resulting in federal and state penalties that could include a fine of up to $75,000. 

Examples of Design Defects 

Here are a few real-world examples of design defects:  

  • A highway overpass was designed without accounting for the typical height of trucks and construction vehicles. Several trucks collided with the top of the overpass, causing extensive property damage and significant traffic problems. 
  • A new neighborhood was designed with an insufficient stormwater drainage system. Some residents experienced flooding during heavy rain and thunderstorms, causing property damage and dangerous conditions.  
  • A university library was built on a lot of lakefront sandy soil. The building’s design failed to account for the weight of the books located inside the library, and the entire structure began to sink several inches per year.  

Liability for Design Defects For Home and Business Owners  

If you think there’s a design defect in a recently completed project in your newly built home or commercial business, here’s what to do: 

  1. Document the issue. Take pictures and videos, and keep track of your expenses for repair and replacement.  
  1. Review your construction contract and blueprints. Inspect your agreement with your contractor or construction company to review your agreed-upon specifications. You can also see if construction and design defects are addressed in the contract. 
  1. Get a second opinion. Hire another designer or contractor specializing in design assessments to review your project design. They can provide a third-party opinion on whether a design defect may have occurred.  
  1. Speak with a construction attorney. Once you have confirmation about an alleged design defect, contact a legal professional, like our team at the Boutty Law Firm. We will listen to your concerns and help you through the process of receiving compensation for expenses and damage caused to your home or business due to a design defect.  
  1. Notify the designer, contractor, or construction company. You must follow specific requirements to do this, so our attorneys will help you through this process.  
  1. File a claim. You have four years after discovering the defect to file a claim. We will work diligently to help you get the compensation you deserve due to your property’s design defect, whether we use formal mediation methods or take your case to court.  

Experienced Construction Attorneys in Central Florida 

The Boutty Law Firm has over 20 years of experience in the construction industry and has helped clients with numerous construction law cases in Central Florida. We represent residential and commercial property owners and construction companies for all construction law matters. Contact us today to discuss your case and schedule a consultation.  


What To Do If A Construction Lien Is Placed On Your Home in Florida

Liens are a legal remedy used by contractors, construction companies, and home service providers in Florida to ensure payment for completed services. A lien allows them to make a claim against your property to settle a debt. While an involuntary home sale to pay off the debt is rare, liens can make selling or refinancing your home difficult.  Construction lien law can be complex and confusing, so this article is an overview and starting point.  One priority for any property owner is to file a notice of commencement with the local clerk’s office before or very quickly after a project starts.  Many clerk’s offices have an acceptable form to follow for this notice, or go to Fla. Stat. §713.13 and follow the form provided.  The notice of commencement will generally have the following: 

  • The address of the property. 
  • The nature of the work performed. 
  • The names and addresses of the owner, general contractor, and surety. 

The reason for doing this is to provide accurate information so those individuals or companies that want to file a lien have the information they need to help them do so properly.  If you do not file a notice of commencement or record an inaccurate notice, this may be used by claimants whose time limit has lapsed as an exception to collect when otherwise their claim would have been barred.  

Who Can File A Lien?  

Under Florida’s Construction Lien Law (Chapter 713, Florida Statutes), anyone who worked on a property and didn’t receive payment for their services may file a lien on that property. Liens can be filed against your property even if you have already paid the contractor or business but they failed to pay their employees or subcontractors. Various service providers may file a lien, including material providers, contractors, subcontractors, architects, engineers, interior designers, and surveyors. Homeowner associations (HOAs) and the IRS can also place liens if you have unpaid dues or owe back taxes. 

How Liens Are Filed  

To file a valid lien in Florida, the eligible person or business must do so within 90 days from the last day they furnished labor or materials to improve the property to record a construction lien properly.  The person or business owner must inform you of their intention to place a lien through a formal Notice to Owner, following the specific format stated in Chapter 713 of the Florida Statutes. The Notice to Owner should include your name and address, a description of the services or work performed, the amount due, the filing date, and a clear warning about the implications of a lien, as described in the statute.  A proper lien acts as security to their right to payment from the property owner, and once recorded, the lien is valid for one (1) year.      

How Do You Remove a Lien From Your Property?  

If you receive a Notice to Owner or discover a lien on your property, you have several options to attempt its release: 

  1. Pay off the lien. The most straightforward and quickest way to remove a lien is to pay off the debt owed to the contractor or service provider with a valid claim against your property. Keep a record of all payments made, and once the final payment is made, request a final payment affidavit and a formal release of lien to ensure its removal from your property record. 
  1. Request a Lien Release If you believe the lien was wrongfully filed, you can request a formal release of the lien from the lienor. Provide documentation proving the debt was paid in full and request the lien’s removal. 
  1. File a Contest of Lien. The owner may pressure the business or person filing the claim by filing a Notice of Contest of Lien form as provided in the body of the statute (Fla. Stat. §713.22(2)), which shortens the time the claimant has to institute their action to sixty (60) days, or the lien is automatically extinguished. 
  1. Allow the Lien to Expire. If the lienor fails to file a lawsuit within 1 year of filing the lien or 60 days from a Contest of Lien, the lien automatically expires.  

Real Estate Attorneys You Can Trust: The Boutty Law Firm. Dealing with property liens in Florida can be complex and requires adherence to specific guidelines outlined in state law. If you have a lien on your property, seek assistance from experienced real estate attorneys like our team at The Boutty Law Firm. Contact our Maitland, Florida, office at 407-622-1395 to discuss your case. 


Common Disputes in Construction Law 

The complex nature of construction projects and the number of people involved can be a breeding ground for legal disputes. From bidding on a project to discovering defective materials years after completion, many issues can arise surrounding construction. When legal matters emerge regarding construction law, count on an experienced construction law attorney like the Boutty Law Firm to work with you during legal disputes and challenges before, during, and after a construction project. Below, we discuss some of the most common causes of construction disputes in Florida.  

Construction Liens  

One of the most common types of construction disputes is a construction lien, also known as a mechanic lien. Liens are a powerful type of legal action that ensures contractors and workers are paid for their services promptly. This is done by leveraging a legal right to the property where the work was performed to secure payment. Any contractor who worked at a property and didn’t get paid can issue a lien—even if the owner paid a general contractor who failed to pay their subcontractors. Contractors who wish to file a lien against a property must inform the owner of their intention with a Notice to Owner, which must be sent within 45 days after the service is completed. The Notice to Owner must follow strict guidelines as stated in Chapter 713 of the Florida Statutes, so it’s best to work with an attorney to ensure you follow the proper procedures. If payment is not received even after sending the Notice to Owner, our legal team will follow up with a Claim of Lien and the appropriate legal action to ensure you’re paid for your work.  

Defective Materials  

Another reason for construction disputes is claims of defective products or materials. According to Florida Statute 558.002(5), a construction defect is a deficiency arising from the specifications, planning, supervision, observation, repair, remodeling, or design of a piece of real property. Types of construction defects include:  

  • Defective materials and products by manufacturers  
  • Code violations during the time of construction  
  • Faulty design  
  • Failure to adhere to trade standards and best practices  
  • Premature wood deterioration 
  • Foundation cracks  
  • Sagging or leaning foundation or walls  
  • Faulty wiring  
  • Black mold and other moisture problems  

To file a claim based on a construction defect, you must prove who was legally responsible, such as a construction team, designer, or product manufacturer. Construction defects can take years to discover; sometimes, they aren’t visible until a storm or remodeling project exposes them. After the defect is found, property owners have four years to file a claim. They must also notify the negligent party 60 days before filing a claim. 

Contract Disputes  

Unclear contracts are another common cause of construction disputes. Contracts should provide all the necessary information needed to ensure the construction company and business owner are on the same page. Some things that should be included in a construction contract are a lien warning, a detailed project description (including the scope of work, documentation, and role designation), cost estimates, and the process of submitting a change order clause. Learn more about what to include in a construction contract here.  

Bid Disputes  

Disputes over the accuracy and completeness of a construction bid can lead to a formal bid dispute against the company or organization that requested it. There are two general types of bid disputes: pre-award and post-award. Pre-award disputes challenge the process of selecting a winning bid by the business owner. A post-award dispute challenges the construction company that won the bid. Post-award disputes can be filed due to the legitimacy of the construction company (such as being unlicensed), failure to complete a bid by the required deadline, or errors in the bid itself.  

Boutty Law Firm—Experienced Construction Lawyer 

Legal construction issues are complex and extremely detailed, so it’s essential to use an attorney that is experienced in the construction industry. Attorney Benjamin Shane Boutty has over 20 years of experience as a certified contractor and construction company owner. Now, he uses his expertise to help you with any legal issue regarding construction projects, no matter how complicated. Contact us today at 407-710-0540 to schedule a free consultation.  


Guide to Obtaining a New Commercial Building Permit

The Florida Building Code is a group of regulations specified in Florida Statute 553.79. It requires businesses, individuals, and contractors to obtain necessary permits when “constructing, erecting, altering, repairing, or demolishing” a building. These regulations are intended to keep employees, patrons, and visitors safe while on the premises and help buildings withstand natural disasters like hurricanes. While the state dictates the requirements that make up the Florida Building Code, each county has specific requirements for obtaining a building permit. In addition, different permits are needed if you are constructing a new commercial building, renovating an old one, or building a new residential property. Below, we discuss the requirements for obtaining a new construction commercial building permit in Orange County, Florida.

Required Documents for New Commercial Building Permit Application

Contractors must submit various documents online to apply for a new commercial construction permit in Orange County. In most cases, contractors must be the ones to apply for the permit and accept the issuance once it is approved. A business owner can apply for a permit if the project costs less than $75,000. Contractors must submit their application for new construction along with the appropriate documents through Orange County’s Fast Track online permit system (described in detail below). Necessary documents that are required to accompany the initial application include:

  • Site plan or survey (including dimensions and location)
  • Project scope signed and sealed by a licensed Florida architect or engineer
  • Life safety plans
  • Floor plan
  • Construction type
  • Occupancy classification
  • Energy conservation code
  • Fire flow calculation
  • Door and window installation plan and product description

 How to Apply for a New Commercial Building Permit

1. Fill out the Fast Track application.

Orange County uses an online portal called Fast Track for all permit applications. Filling out the online application and uploading the necessary documents is the first step in obtaining a new commercial construction permit.

2. Upload documents.

Follow the instructions for uploading documents carefully, including required file types and names to ensure your application is processed promptly. In addition to the documents mentioned above, you must complete a Commercial Plan Review checklist and pay a deposit fee.

3. Project and plans review.

An inspector will review the online application and ensure it complies with all elements of the Florida Building and Fire Prevention codes. Depending on the type of construction, there may be additional reviews that are required.

4. Approval or denial.

After the review process, you will receive an email with either a permit approval notice or a denial. If you are denied, you can utilize the comments within the application to resubmit your permit after revising your building plans. If your application is accepted, the permit status will change to “final issuance,” and you will be emailed a final issue letter. You will also need to sign and notarize the second page of the new building application and resubmit it to Fast Track.

5. Pay permit fees.

6. Apply for sub-permits.

Additional permits may be required depending on the type of building. You may need to apply for a sub-permit for the building’s electrical, roofing, gas, irrigation, plumbing, or mechanical elements.

7. Notice of commencement.

This notice needs to be signed with a certified copy uploaded into the Fast Track system before the first inspection.

8. Schedule the first inspection.

9. Final inspection and permit completion.

Boutty Law Firm: Business and Construction Attorney in Central Florida

 Attorney Shane Boutty, P.A., has over 20 years of experience in the construction industry and is experienced in all aspects of commercial law. If you believe your new construction project has been denied unfairly, or you have issues regarding new building inspections, we can help ensure your project stays on track and up to code. Call our office in Maitland at 407-710-0461 for a free initial consultation.


What is a “Damage To Your Work” Exclusion?

As a general contractor, your business must have Commercial General Liability insurance (CGL). This type of insurance is required for most construction contracts. Primarily, CGL covers personal injuries and property damages to others during the job or on your completed work. Most CGL insurance policies include clauses for exclusion—specific times that insurance will not cover damages. One common exclusion in contractor policies is the “Damage to Your Work” or “Your Work” exclusion. Below, we discuss what this exclusion means, common scenarios where it is used, and how it impacts a claim against your insurance as a general contractor.

What is the “Damage to Your Work” Exclusion?

 The Damage to Your Work exclusion protects the insurance company from paying to cover the cost of replacement materials and structures resulting from faulty or defective work. The policy may word this exclusion similar to this:

“This insurance does not apply to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts, or equipment furnished in connection therewith. This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.”

Most CGL policies cover property damage and bodily injuries caused by defects or construction errors but will not cover replacement costs for fixing the damaged work. The Damage to Your Work exclusion allows insurance companies to deny covering the costs of repairs or replacement for materials for work you performed.

Why Do Insurance Companies Include Damage to Your Work Exclusions?

Insurance covers property damage and personal injuries to clients or customers caused by general business risks. These policies are not meant to act as a warranty, covering the replacement or repair of defective parts related to the claim. The Damage to Your Work exclusion prevents insured business owners from receiving funds to repair or replace the faulty work that caused the damage in the first place. It includes denying claims for building materials like shingles, flooring, drywall, and the cost of labor to repair what was damaged.

Example Scenarios

To understand how the Damage to Your Work exclusion may be utilized in the real world, here are two instances where this exclusion may come into play:

Bathroom Remodel

During a bathroom remodel, a contractor retiled the shower. Before installing the tile, the contractor placed a waterproof rubber membrane underneath the shower pan to prevent water from entering the subfloor. During installation, the membrane ripped, causing a hole that the contractor did not notice before continuing to install the shower. Several months after the remodel was complete, water began to leak and caused damage to the surrounding shower drywall and the shower’s subfloor. To fix the leak, the contractor had to remove some of their previously completed tile work and replace part of the subfloor. The contractor made a claim through his CGL insurance, which paid for the client’s property damage. He also claimed to recover the cost of labor, and for replacing the tile he had to tear out. The claim was denied under the contractor’s Damage to Your Work exclusion, citing the tile repairs were only needed due to the contractor’s poor workmanship caused by the tear in the membrane. 


A contractor oversaw a roof install for a client. However, the shingles were not installed properly. Several months later, the roof leaked during a bad thunderstorm, causing damage to the client’s belongings stored in the attic. To fix the damage, the contractor had to replace the entire roof. The contractor filed a claim with his CGL insurance, which covered damage to the homeowner’s belongings. However, the insurance denied coverage for the cost of replacing the roof, citing the Damage to Your Work clause as the roof damage was caused by faulty shingle placement.

Damage to Your Work and Subcontractors

As in the sample wording above, the Damage to Your Work exclusion often includes phrasing regarding subcontractors. In these instances, CGL may cover the cost of repairs if the damage was caused by work done on your behalf by a contractor. This is because the subcontractor should have a similar exclusion within their own CGL policy. In this instance, the subcontractor would be responsible for the costs of repairs and damages.

Appealing a Damage to Your Work Exclusion

The Damage to Your Work exclusion is common in construction contracts. However, it is often contested and regularly misinterpreted. If you believe your insurance company has unfairly denied your claim under the Damage to Your Work exclusion, contact the Boutty Law Firm. Attorney Shane Boutty is a certified contractor and former construction business owner. He understands construction law, claims, and insurance policies, fighting for your rights as a construction professional. Schedule a consultation by calling 407-710-0461 or stop by our office in Maitland for a consultation to discuss your case. 

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