How many times have you allowed an Owner to take occupancy before the work is 100% complete and before the work has been formally accepted?  Florida’s Fourth District of Appeal just released a ruling that will make you think twice before you ever do so again.

In Gonsalves v. Sears, 4D02-3196 (Fla. 4 DCA 2003), a contractor failed to properly install new carpet on a staircase. The homeowner contacted the supplier (Sears, Roebuck and Co.) on several occasions to have them or their independent contractor (Flamingo Carpet, Inc.) rectify the problem.  Sears assured the homeowner that the problem would be corrected.  The homeowner never contacted another contractor to fix the problem.  Several months after, and before Sears could remedy the problem, Gonsalves fell on the staircase resulting in serious injury. 

Sears and Flamingo alleged that the homeowner’s failure to rectify the known problem was the proximate cause of the Plaintiff’s injuries.    Their allegations were based on the legal concept of the Slavin doctrine.  The Slavin doctrine basically says that a contractor is relieved of liability for damages caused by a patent defect (i.e. a defect that plainly visible) after control of the completed premises has been turned over to the owner. Slavin v. Kay, 108 So.2d 462 (Fla. 1959). If the owner accepts work from the contractor, the owner is obligated to make any patent defect safe.  Id.  However, the contractor must have completed the work and the owner must have accepted the work.  Unfortunately for Sears and the independent contractor, the evidence tended to show that the work was neither completed nor accepted. 

Practical Tips:

• Understand that there may be considerable risk in allowing an Owner to take occupancy before the premises are 100% complete and the work has been approved and accepted in writing.
• If the Owner insists in taking occupancy despite the fact that the work is not 100% complete, consider having him/her sign a liability waiver before they do so.  
• If you do not have a liability waiver, you may want to consider having an experienced attorney draft one that address your specific needs. 
• Prior to move in, make sure you have the punchlist signed by all parties; including any tenants that will occupy the premises.  This will help reduce your exposure from any items that may have been damaged or altered after move-in.

If you have any questions, please call us at (954) 229-1008.