Imagine a homeowner repairs a small crack in the wall, only to find more minor cracks months later, gradually increasing in size, eventually revealing the truth: a significant foundation problem. In the ensuing construction defect litigation, the court must determine if the first crack put the homeowner on sufficient notice the statute of limitations was running.

For certain types of defects, such as a leaky roof, Florida courts generally hold that notice occurs at the first sign of a defect. This makes sense because, as the court noted in Kelly v. School Board of Seminole County, “when newly finished roofs leak it is not only apparent, but obvious, that someone is at fault."[1]

Other construction defects, however, are not always as clear as water dripping from the ceiling into a bucket on the floor. In these situations, where the problem’s manifestation could be attributable to causes other than an actionable defect, courts have held that defects initially attributed to other causes may preclude notice as a matter of law. The fountainhead of this stream of cases, Board of Trustees of Santa Fe Community College v. Caudill Rowlett Scott, Inc., concluded that notice did not exist at the first instance of leaking pipes, where the problem was initially attributed to a variety of individual problems, rather than corrosive soil conditions.[2]

Similarly, in Performing Arts Ctr. Auth. v. Clark Construction Group, after minor cracks were identified in stucco, the building manager contacted the subcontractor, who claimed the cracks were the result of natural settlement.[3] When later extensive cracking was discovered, the court concluded that notice “as a matter of law may not be inferred,” and the question was instead “an objective question of whether the facts and circumstances were sufficient to put [owner] on notice that a cause of action existed.”

Snyder v. Wernecke provides further guidance, where the court was again presented with a series of small cracks, slowly spreading into large cracks over a seven year period.[4] The court found that plaintiffs were on notice once large cracks appeared, but declined to find notice from the time when only small cracks were present.

Flowing together, these cases suggest that a series of initially minor cracks, growing larger over time, may prohibit the court from inferring notice at the time of first discovery. Instead, the determination of notice is usually an objective question reserved for the finder of fact.

However, these cases raise the question: when is a defect big enough to provide definitive notice as a matter of law? When is a hidden pipe leak or hairline crack sufficient notice? Any clear answer has thus far slipped through the cracks.

This article appeared in the May 2012 Lawyer magazine, a publication of the Hillsborough County Bar Association