By John Montague, Esq., Montague Law
When you buy a brand-new home in Florida — whether a custom build, a luxury spec, or a production builder’s unit — the contract on the table is often a one-size-fits-all form. The Florida Realtors / Florida Bar AS IS Residential Contract is the most common, and it works fine for resale. But for new construction, the standard form is built around the assumption that a finished home is being sold. It doesn’t address most of the things that actually matter when a builder is still pouring foundations, framing walls, or installing finishes.
That gap between the standard form and the realities of new construction is where buyers get hurt. Here are five things to look for — and to insist on — before you sign.
1. A Real Completion Date, with a Real Remedy if It’s Missed
Most builder-supplied contracts include a target completion date that the builder can extend almost at will: any weather event, supply chain hiccup, or labor shortage triggers an extension. The buyer is left waiting.
A buyer-protective contract draws three clear lines:
- A target Substantial Completion date — when the builder promises to be done
- An Outside Date — the contractual drop-dead, beyond which the buyer can walk
- A defined remedy — what happens when the Outside Date is missed (typically: full refund of deposit and the buyer’s election of either terminating or pursuing specific performance)
Force majeure provisions should be reasonable but not unlimited. A 60- to 90-day cumulative cap on force majeure extensions is standard in well-drafted Florida residential new-construction contracts. Without a cap, the timeline can drift indefinitely.
Bottom line: if the contract doesn’t put a real outside date on the builder’s obligation to deliver, the buyer is essentially writing a blank check on time.
2. Inspection Rights That Cover the Stages That Actually Matter
A standard purchase contract gives the buyer a single inspection period of 10 to 15 days after the contract is signed. That’s useful for resale, where the house exists and can be inspected. For new construction, it’s largely meaningless — the house may not exist yet, or only partially.
A buyer-protective new-construction contract preserves inspection rights at three or four critical stages:
- Due-diligence period — typically 21 days post-contract, during which the buyer can walk for any reason
- Pre-drywall inspection — the most important construction-stage inspection. This is the last chance for the buyer (and the buyer’s licensed inspector) to see framing, plumbing rough-in, electrical rough-in, HVAC, and waterproofing before drywall covers everything up. Industry warranty programs like 2-10 HBW and Residential Warranty Corp (RWC) require these inspections; sophisticated buyers should too.
- Pre-closing inspection — to verify finishes and systems are complete
- Final walk-through — within days of closing, with a written punch list
Each inspection should give the buyer the right to require the builder to cure material defects before the next phase or before closing. Cosmetic items can be handled with an escrow holdback at closing (the customary formula is 1.5 times the estimated cost of cure).
Bottom line: if the contract doesn’t give you inspection access at pre-drywall stage, you’re trusting that everything behind the walls was done right — without ever having a chance to confirm it.
3. Warranties — Express and Implied
Florida law gives new-home buyers significant protection through both contractual warranties and implied warranties.
The express builder limited warranty is what the builder offers in writing. The industry standard is 1-year workmanship, 2-year mechanical systems (plumbing, electrical, HVAC), and 10-year structural — sometimes called “1/2/10.” Third-party warranty programs like 2-10 Home Buyers Warranty and Residential Warranty Corp use the same framework. A buyer should confirm the express warranty is on this scale and survives closing.
The implied warranties are arguably more important. In Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA 1972), adopted by the Florida Supreme Court at 264 So. 2d 418 (Fla. 1972), Florida recognized implied warranties of fitness, merchantability, and habitability for new homes sold by builder-vendors. The Florida Supreme Court reaffirmed the core of that protection in Conklin v. Hurley, 428 So. 2d 654 (Fla. 1983), while declining to extend the implied warranty beyond the home and the improvements immediately supporting it. These warranties exist by operation of law for the home itself; they don’t have to be written into the contract.
But here’s the trap: builders and developers often include broad “AS IS” language in their contracts that tries to disclaim these implied warranties. Florida courts have held that general disclaimers are insufficient (Hesson v. Walmsley Construction, 422 So. 2d 943 (Fla. 2d DCA 1982)), but specific, clear, and conspicuous disclaimer language can waive them.
A buyer-protective contract should expressly preserve the implied warranties — stating in the rider that “AS IS” language in the form does NOT disclaim the Gable warranties. This is buyer-protective drafting that simply confirms existing Florida law.
Bottom line: make sure the contract doesn’t quietly take away protections that Florida courts have given new-home buyers for over fifty years.
4. Lien Protection — Florida’s Construction Lien Law Is Real
Florida Chapter 713 — the Construction Lien Law — gives subcontractors, materialmen, and suppliers powerful rights to file liens against the property for unpaid work. On new construction, those rights can attach to your property at closing if the builder hasn’t properly closed out its subcontractor relationships.
A buyer-protective contract requires at closing:
- A properly recorded and terminated Notice of Commencement under FS 713.13
- A Final Contractor’s Affidavit under FS 713.06(3)(d)
- Final waivers of lien from every subcontractor, materialman, and supplier who has worked on or supplied the property
- A mechanic’s lien / lien-free endorsement on the owner’s title insurance policy (typically ALTA Endorsement 32 or the Florida equivalent), paid by the seller
This is not just paperwork. Without these protections, a subcontractor the buyer has never met can file a lien against the property months after closing, demanding payment for work that should have been paid by the builder. The buyer is left to either pay or litigate.
Bottom line: Florida’s lien law is designed to protect contractors — buyers need affirmative contractual and title-insurance protection to avoid being on the wrong end of it.
5. Coastal and Flood Considerations
Florida buyers along the coast face unique regulatory and insurance considerations.
Coastal Construction Control Line (CCCL), established under FS 161.053, regulates construction east of a state-designated line along Florida’s beaches. If the property is partially or totally seaward of the CCCL, FS 161.57 requires the seller to provide a CCCL disclosure — and gives the buyer the right to demand an affidavit or survey delineating the line at or before closing. The standard FAR/BAR Rider N delivers this disclosure cleanly.
Insurance is the second consideration. Properties in flood zones require flood insurance; properties in wind zones require windstorm coverage. Premiums on the Florida coast can be substantial — often combined annual premiums in the $5,000 to $25,000+ range depending on elevation, building characteristics, and location. A buyer-protective contract preserves the buyer’s right to obtain insurance quotes during a due-diligence window and to terminate if combined premiums exceed an acceptable threshold. Rider H from the Florida Realtors / Florida Bar comprehensive rider library is the standard form.
Wind-Borne Debris Region. Most of Florida’s coast, including all Atlantic-facing areas, falls within the Wind-Borne Debris Region as defined by the Florida Building Code. New construction must meet enhanced wind-load requirements: impact-resistant glazing or approved shutters, hurricane straps, and reinforced framing. Buyers should confirm that the spec includes these elements in the base price.
Bottom line: coastal Florida property is wonderful, but it carries unique regulatory, insurance, and code considerations that a generic contract does not cover. Get them addressed in writing before signing.
What This Means in Practice
The Florida Realtors / Florida Bar AS IS Residential Contract is a fine starting point — and it’s the form most realtors will use. But the form was designed for resale. When buying new construction, the buyer needs to negotiate a custom new-construction rider that addresses completion timing, inspection rights, warranty preservation, lien protection, and coastal considerations specific to the property.
These provisions are not “asks.” They are the standard buyer-protective framework for sophisticated Florida new-construction transactions, supported by the FAR/BAR pre-approved rider library (Riders H and N in particular), Florida case law (Gable, Conklin, and progeny), Florida statutes (Chapters 161 and 713), and industry-standard practice in the residential new-construction market.
If you’re considering a new-construction purchase in Florida and want experienced counsel to walk through the contract structure, the warranties, the lien protections, and the regulatory landscape with you, reach out to our office. We represent buyers in Florida real estate transactions — including new construction, custom builds, coastal properties, and luxury residential — and we’d welcome the conversation. You can also learn more about our residential closing services.
This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Every transaction is unique and requires individualized legal analysis. If you are considering a Florida real estate purchase, consult with qualified Florida counsel about your specific situation. Prior results do not guarantee a similar outcome.
