What Counts as a “Latent Defect” Under Florida Law?

If you own property in Florida, whether it’s a home, a condominium unit, or a commercial building, chances are you’ve heard the term “construction defect” before. But when problems don’t show up right away, things get more complicated. That’s where the concept of a latent defect comes in.

Below, we break down what qualifies as a latent defect in Florida, how courts look at these claims, and why timing is critical.

What Is a Latent Defect Under Florida Law?

Under Florida law, a latent defect is a defect that is not readily observable or discoverable through reasonable inspection at the time the property was completed, purchased, or accepted.

In plain terms, a latent defect is a hidden problem. It exists at the time of construction, but it doesn’t reveal itself until months or even years later.

Florida courts generally distinguish latent defects from patent defects, which are problems that are open, obvious, or should have been discovered through reasonable inspection.

Examples of latent defects often include:

• Improperly installed waterproofing systems
• Hidden structural deficiencies
• Defective plumbing or electrical work concealed behind walls
• Subsurface foundation issues
• Improper roof installation that only causes leaks years later

The key is not whether the defect eventually becomes visible, but whether it could reasonably have been discovered earlier.

Latent Defect vs. Patent Defect: Why the Difference Matters

This distinction is not academic. It directly affects your legal rights.

A patent defect is one that:

• Is visible on inspection
• Should have been discovered with reasonable diligence
• Exists openly at the time of completion or purchase

Examples might include cracked tiles, uneven flooring, or visible water intrusion.

A latent defect, on the other hand:

• Is hidden
• Cannot be discovered through reasonable inspection
• May not cause damage until long after construction is complete

Why does this matter? Because latent defects often extend the time you have to bring a claim, particularly when it comes to Florida’s statute of limitations and statute of repose.

Common Examples of Latent Construction Defects in Florida

Florida construction defect cases frequently involve issues that stay hidden until environmental stress, water intrusion, or use over time exposes them.

Common latent defect claims include:

• Improper flashing or waterproofing that leads to internal water damage
• Structural steel corrosion hidden behind finishes
• Improper concrete placement or reinforcement
• Mold caused by concealed moisture intrusion
• Plumbing lines installed incorrectly inside walls or slabs
• Roofing systems installed in violation of code but covered by finishes

In many cases, property owners only discover these issues after a leak, a structural failure, or a professional inspection triggered by another problem.

How Florida Courts Determine Whether a Defect Is Latent

Florida courts do not apply a one-size-fits-all rule. Instead, they look at the specific facts of each case, including:

• Whether the defect was visible or concealed
• Whether a reasonable inspection would have uncovered it
• The sophistication of the property owner
• Whether expert investigation was required to identify the problem
• When the defect first caused observable damage

Importantly, courts recognize that property owners are not required to open walls, remove finishes, or conduct invasive testing just to preserve their rights.

If discovering the defect would have required destructive testing or specialized expertise, it is more likely to be considered latent.

How Latent Defects Affect the Statute of Limitations in Florida

One of the most important reasons latent defects matter is how they interact with Florida’s construction defect deadlines.

Under Florida law:

• Construction defect claims generally must be brought within four years
• The clock typically starts running when the defect is discovered, or should have been discovered with reasonable diligence

For latent defects, this discovery rule is critical. The limitation period may not begin until the defect actually manifests itself in a way that would alert a reasonable owner.

However, there is also a statute of repose, which places an absolute deadline on claims regardless of discovery. In most construction cases, that deadline is ten years from completion or termination of the contract.

Once the statute of repose expires, claims are barred even if the defect was truly hidden.

Latent Defects in Commercial and Residential Construction Disputes

Latent defect issues arise in both residential and commercial settings, but commercial cases often involve higher stakes and more complex systems.

In commercial real estate and condominium projects, latent defect claims frequently involve:

• Building envelope failures
• Structural engineering errors
• Code violations concealed during construction
• Mechanical, electrical, or plumbing system failures

These cases often require expert analysis and careful documentation to establish when the defect originated and why it could not have been discovered earlier.

What to Do If You Suspect a Latent Defect

If you believe your property has a latent defect, timing and documentation matter.

Practical steps include:

• Documenting when the issue was first discovered
• Preserving evidence before repairs are made
• Obtaining a professional inspection or expert opinion
• Reviewing construction contracts and warranties
• Speaking with a construction litigation attorney early

Waiting too long can jeopardize your ability to recover, even if the defect is clearly tied to faulty construction.

Why Latent Defect Claims Require Careful Legal Analysis

Latent defect cases are rarely straightforward. Builders, developers, and insurers often argue that:

• The defect was patent, not latent
• The owner should have discovered it earlier
• The claim is time-barred
• The damage was caused by maintenance issues rather than construction

Successfully pursuing or defending these claims requires a detailed understanding of Florida construction defect law, procedural deadlines, and the technical aspects of construction itself.

Final Thoughts on Latent Defects Under Florida Construction Law

Latent defects are some of the most serious and expensive construction problems property owners face, precisely because they stay hidden until significant damage occurs. Understanding what qualifies as a latent defect under Florida law can make the difference between a viable legal claim and a missed opportunity.

If you are dealing with a construction issue that appeared long after completion, contact an experienced attorney at 305-570-2208. 

You can also email our trial attorney Eduardo directly at eduardo@ayalalawpa.com.

Don’t hesitate to schedule a case evaluation with us online here.

[The opinions in this blog are not intended to be legal advice. You should consult with an attorney about the particulars of your case].