Residential Construction Defects Lawsuits Under California Law
By Ethan Watts
Civil Code section 895 et seq. (the “Right to Repair Act”) applies to “any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction, design, specifications, surveying, planning, supervision, testing, or observation of construction.” Civil Code § 896. In such an action, the claimant’s claims or causes of action for construction defects are limited to violation of the standards set forth in the Right to Repair Act. Civil Code § 896. Subsections 896(a)-(g) set forth the standards, some of which appear to apply here. As stated in section 897, the standards set forth in the Right to Repair Act “are intended to address every function or component of a structure.” Civil Code § 897. “To the extent that a function or component of a structure is not addressed by these standards, it shall be actionable if it causes damage.” Civil Code § 897. The Right to Repair Act applies to residences sold on or after January 1, 2003. Civil Code § 938.
As stated by section 943 of the Civil Code, except as provided in the Right to Repair Act, “no other cause of action for a claim covered by [the Right to Repair Act]… is allowed. In addition to the rights under [the Right to Repair Act, the Right to Repair Act] does not apply to any action by a claimant to enforce a contract or express contractual provision, or any action for fraud, personal injury, or violation of a statute.” [Emphasis added]. Civil Code § 943. Thus, other than fraud and breach of contract related claims, any claims for construction defect in residences sold on or after January 1, 2003 are covered by the Right to Repair Act.
There are numerous pre-litigation procedures that must be followed before a lawsuit for construction defect can be filed under the Right to Repair Act. First, the claimant must give written notice of the defect claim pursuant to Civil Code section 910. Civil Code § 910. The contractor then has 14 days to acknowledge receipt of the notice of claim. Civil Code § 913. There are specific provisions covering the steps subsequent to the contractor’s acknowledgment of receipt of notice of claim, e.g., the contractor’s right to inspect the construction defect, offer to repair the construction defect, make a cash offer in lieu of repair, etc. and associated deadlines. See Civil Code §§ 910 – 938. If the claimant fails to follow the pre-litigation procedures, the contractor may bring a motion to stay any subsequent action until the requirements have been satisfied (and attorney’s fees may be awarded to the prevailing party on such motion). Civil Code § 930(b). If the contractor fails to follow the pre-litigation procedures, the claimant may file a construction defect lawsuit under the Right to Repair Act. Civil Code § 930(a).
The damages provision of the Right to Repair Act entitles the claimant to the reasonable cost of repair. Civil Code § 944. Attorney's fees are not available unless otherwise available under a contract or other statute.
With multiple exceptions, an action under the Right to Repair Act generally must be brought within “10 years after substantial completion of the improvement.” Civil Code § 941(a). Certain specified violations have shorter statutes of repose, e.g., a claim regarding cracks in exterior pathways, driveways, hardscape, sidewalls, sidewalks, or patios that “display significant vertical displacement or that are excessive” must be brought within four years from the close of escrow. Civil Code § 896(g)(1). Depending on the construction defect at issue, different statutes of repose may apply. Thus, as always, it is important for a potential contruction defect claimant to investigate and act quickly to avoid being time barred.
The above discussion is intended to be a general commentary on legal issues. Each situation is different and this article is not intended as legal advice. Further, nothing in this article is intended to create an attorney-client relationship.