What Developers and Contractors Need to Know About Destructive Testing

Chapter 558 Fla. Stats. is Florida’s pre-suit notice and right to cure procedure, which applies before property owners may assert a claim against a developer, contractor, subcontractor or design professional for construction and design defects. It expressly provides for “destructive testing” of the defective areas of the property via written request and mutual agreement. 

Destructive testing may be performed to refute the existence of defects. Examples of destructive testing may include such things as removing drywall, stucco, or other components to view the hidden conditions beneath it.

At a minimum, a developer or contractor’s request for destructive testing should describe: (i) who is performing the testing, (ii) the anticipated testing methods and locations, (iii) the estimated anticipated damage and repairs to or restoration of the property resulting from the testing, (iv) the estimated amount of time necessary for the testing and to complete any repairs or restoration, and (v) who will bear financial responsibility for covering the costs of repairs or restoration. 

Developers or contractors may be asked to sign a written agreement prior to the commencement of any destructive testing, setting forth the rights and obligations of all participants. If the property owner fails to request it, the developer or contractor should have their attorney draft such an agreement.  Among other things, it could include the anticipated timeframes and locations for testing, identify the mutually agreed upon testing methods and indentify who will bear the costs for testing, materials, permits, governmental fees, post-testing repairs, consultants’ fees, security costs and the like.

Developers and contractors should also consider whether they wish to post a bond. If they have not done so already, they should obtain and maintain liability insurance coverage and workers compensation insurance before any destructive testing begins as well as throughout the destructive testing process.

Developers and contractors also need to determine in advance whether they are prepared to indemnify, hold harmless and defend the property owners from any personal injury or property damage which could be caused by the destructive testing. Lastly, developers and contractors should come to an agreement not only each other, but with any other testing parties, such as design professionals, subcontractors and the property owners, as to each of the testing parties’ respective duties, if any, to share reports or results of the destructive testing with each other.