Must New Home Builders Be Given An Opportunity To Repair Construction Defects?

It used to be if you bought a new home and discovered defects in the construction you would immediately bring suit against the builder, contractor and sub-contractors. Why give them the opportunity to fix their mistakes? Why should you trust the one who made the mistake to be able to fix it? It made sense to bring in a new contractor to do repairs and sue everyone for the cost of repair and, in many cases recover attorneys’ fees.

In 2003, the Right to Repair Act was enacted. If the buyer signed an agreement to purchase a new home on or after January 1, 2003, the Act requires the buyer to give the builder a reasonable opportunity to inspect and remedy any defects found in the construction. It also stays (delays) any legal action over the defects until the statutory Notice and Repair provisions of the Act are satisfied.

There is, however, an unresolved question, that being whether the Act applies to defects that subsequently cause damage to the new home. In Elliott Homes, Inc. v. Superior Court (Hicks) (2016) 6 Cal.App.5th 333 the California Court of Appeals decided that the Act applied irrespective of whether there were other damages resulting from the defects. However, the issue is not yet settled. The Plaintiffs appealed to the California Supreme Court and, in late April 2017, the Supreme Court granted review.

Must residential builders be given an opportunity to repair construction defects in new construction? If the defects do not cause damage it seems builders will always get that opportunity. If the defects subsequently cause damage, builders may or may not get the opportunity to remedy the defects. We must wait to see what the California Supreme Court decides before we know with any certainty whether the Court will immediately take the case.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.