In 2002 the California Legislature adapted the “Right to Repair Act”, (also known as SB 800 or Civil Code § 895 et seq), which allows property owners to seek relief against contractors, developers, architects etc., for design or construction defects, even where the defects had not yet caused physical damage to the owner’s property.
As a pre-condition to the right to sue under the Right to Repair Act, the property owner is was required to first give formal written notice to the builder or developer of the defects found, and allow them to inspect the problems and to attempt to fix them.
If they do not do so, then an owner can sue the responsible parties and seek damages, including loss of value to the home or repair costs, even though the defects had not yet caused any actual physical damage to the property, such as defective roofing causing mold or rot to the property.
Proof of builder negligence is not required to be able to sue recover damages under the Right to Repair Act, as the right to sue arises if the building does not meet certain standards set forth in the Act.
The Notice and Right to Repair process suspends the Statute of Limitations.
In the recent case of Burch v. Premier Homes, the Court of Appeal in Los Angeles held that a property owner is not required to follow the Notice and “Right to Repair” procedures in SB 800, and can directly file suit against the builder or developer etc where the defects already have caused physical damage to the building or property.
The Court of Appeal also reconfirmed that a property owner could also sue for breach of an express or implied warranty in the purchase contract or the construction contract, or for breach of contract, without first following the Notice and Right to Repair provisions of SB 800.
Finally, the Burch Court of Appeal also held that a subcontractor could be sued for breach of an implied warranty of “fitness” for the intended use or for negligence, despite the lack of a direct contract between the property owner and the subcontractor, as the owner or the purchaser of the building is an “intended beneficiary” of the subcontract.
However, despite these holdings, in all but the most serious cases, not all construction defects cause noticeable or obvious property damage within the 10-year statute of repose (outside time limit for suit from substantial completion of the construction), so for most properties, it will still likely be beneficial to follow the procedures of the “Right to Repair Act” or SB 800 before filing suit.
Once this Notice procedure has been followed without success, the lawsuit can also include all other available grounds for a builder’s or developer’s or subcontractor’s liability, including breach of contract, warranty, and the like.
N.B. The contents of this Article do not constitute legal advice or create an attorney-client relationship, and you may NOT rely on it without seeking legal advice regarding your particular situation from a competent California Construction lawyer or Construction Defects attorney. Please also note that factual situations vary, and statutes and case law are frequently changing and evolving, and these materials thus also may be or become outdated or incorrect. For further information on this topic and how the current law may apply to your particular contract, property and issues, Contact Us via email, phone (415)788-1881 or visit our website at www.wolfflaw.com for other contract information. © 2013, George W. Wolff , all rights reserved.