Hidden Versus Obvious Defects

A patent defect is open and obvious – one which can be discovered after inspection. On the other hand, a latent defect is one that is hidden or concealed, and which is not discoverable by reasonable inspection. A latent defect becomes patent when it is discovered or should have been discovered. Whether a defect is patent or latent is generally decided on a case by case basis, although Florida has determined that certain defects, such as leaky roofs, are necessarily patent and obvious.

Determining when a defect becomes patent is important because it impacts the statute of limitations – the deadline for bringing a lawsuit. The deadline for breach of construction contracts is four years from the time the defect was discovered but in no event more than 10 years after 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. Even if the defect is discovered after the expiration of a warranty, the limitations period does not begin to run until the defect is discovered.

Latent Defect Extension

If a homeowner has a problem with either the design, planning or construction of an improvement to his real property, he must initiate legal action within four years of the date of actual occupancy by the owner, the date of 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 engineer, architect or 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 due diligence – this according to Florida Statute of Limitations §95.11.

Defect Repairs After a Natural Disaster

In a case involving repairs to a home after Hurricane Andrew, the homeowners, unhappy that necessary re-roofing work was not completed, sued their contractor on October 25, 2001.  The contractor responded with a Motion to Dismiss the complaint based on the expiration of the applicable statute of limitations.  The critical dates are that the contract for repairs was entered into in September, 1992; deficiencies with the completed work were noted by the County in November, 1993; and in January, 1994, the Dade County Department of Planning issued a notice of building violations regarding the homeowner’s roof system.  The contractor then attempted to repair the roof problems and delivered additional materials to the home in June, 1995.  However, the defects were still not fixed.  As a result, the County refused to issue a final roofing inspection.  Promises continued to be made by the contractor through October 15, 1998 that the roof problems would be resolved, but the contractor never returned to actually do the work.

The trial court determined that the latent defect time frame associated with the statute of limitations applied in this case and therefore dismissed the complaint as untimely – finding that the homeowners failed to bring the suit within four years of discovery of the roofing defect.  The appellate court reversed, agreeing with the homeowners that the latent defect portion of the statute did not apply.  Rather, the four years began to run from the date the contractor abandoned construction (the majority of the Court finding that this was October 15, 1998, the last date the contractor promised to return) and therefore the homeowners’ October 25, 2001 complaint was timely.  Interestingly, there was a dissent in the Court’s opinion, one judge finding that the job was abandoned in June, 1995, the date the contractor was last at the homeowners’ property.

Latent vs Patent

Construction defects can arise at any time, sometimes years after the project’s completion. Defects are either patent or latent, and can involve issues with the project’s design, materials and supplies, or services rendered. While both types of defects can be very damaging, the law treats them differently.

A patent defect is open and obvious, or can be discovered after inspection. A latent defect is a defect that is hidden or concealed, and which is not discoverable by reasonable inspection. A latent defect becomes patent when it is discovered or should have been discovered. Whether a defect is patent or latent will be decided on a case by case basis, although Florida has determined that certain defects, such as leaky roofs, are necessarily patent.

Determining when a defect becomes patent is important because it impacts the statute of limitations, which is the deadline for bringing a lawsuit. The deadline for breach of construction contracts is four years from the time the defect was discovered but in no event more than 10 years after 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 defect is latest. Even if the defect is discovered after the expiration of a warranty, the limitations period does not begin to run until the defect is discovered.