Florida’s Fifth District Court of Appeal recently considered a window installation contractor’s defense to a homeowners' construction defect claims based on the statute of limitations. The homeowners argued that the four-year limitations period in Section 95.11(3)(c), Fla. Stat., for actions founded on the construction of an improvement to real property did not apply because one of the start dates for the running of the limitations period refers to a contract with a "licensed contractor," and the window installer had no license. The homeowners also argued that Section 489.128, Fla. Stat., barred the contractor from asserting the limitations defense because Section 489.128 prevents an unlicensed contractor from enforcing its contract.
In a split decision, Florida's Fifth District affirmed the trial court's summary judgment in favor of the contractor, holding that the reference to "licensed contractor" in the triggering events to begin the running of the limitations period did not limit the applicability of the statute to actions involving licensed contractors. Additionally, the Fifth District held that, while Section 489.128 may prevent an unlicensed contractor from enforcing its contract, it does not prevent an unlicensed contractor from relying on the statute of limitations as a defense to an action brought against it. The Fifth District did not reach the issue of whether a contractor's license was required to install the windows in question.