THE RIGHT TO REPAIR ACT IN SUMMARY
Overview - Section 895 of the California Civil Code is entitled "Requirements for Actions for Construction Defects," and applies exclusively to residential construction. The Code defines what is an "actionable defect," establishes a minimum warranty, and sets forth a "pre-litigation procedure" that includes: a notice requirement, an acknowledgment of notice, a document production, a provision for inspection and testing, a builder's right to repair and mandatory mediation.
Further the Code establishes statutes of limitation (time frame to bring a lawsuit) and limits recoverable damages.
Application - The Code applies to original construction of individual dwelling units, whether single family or attached dwellings and whether a common interest development or otherwise, sold on and after January 1, 2003. (It does not apply to apartments or condominium conversions.)
It does not apply to any action by a homeowner to enforce a contract provision or remedy, or to any action for fraud, personal injury or violation of a statute.
The Code does apply to original purchasers and their successors-in-interest, and to associations of a common development interest.
---------------------------------------------------------------------------------------------------------------------
ACTIONABLE DEFECTS
---------------------------------------------------------------------------------------------------------------------
A. Water Related "Actionable" Defects:
(1) A door shall not allow unintended water to pass beyond, around, or through the door or its designed or actual moisture barriers, if any.
(2) Windows, patio doors, deck doors, and their systems shall not allow water to pass beyond, around, or through the window, patio door, or deck door or its designed or actual moisture barriers, including, without limitation, internal barriers within the systems themselves. For purposes of this paragraph, "systems" include, without limitation, windows, window assemblies, framing, substrate, flashings, and trim, if any.
(3) Windows, patio doors, deck doors, and their systems shall not allow excessive condensation to enter the structure and cause damage to another component. For purposes of this paragraph, "systems" include, without limitation, windows, window assemblies, framing, substrate, flashings, and trim, if any.
(4) Roofs, roofing systems, chimney caps, and ventilation components shall not allow water to enter the structure or to pass beyond, around, or through the designed or actual moisture barriers, including, without limitation, internal barriers located within the systems themselves. For purposes of this paragraph, "systems" include, without limitation, framing, substrate, and sheathing, if any.
(5) Decks, deck systems, balconies, balcony systems, exterior stairs, and stair systems shall not allow water to pass into the adjacent structure. For purposes of this paragraph, "systems" include, without limitation, framing, substrate, flashing, and sheathing, if any.
(6) Decks, deck systems, balconies, balcony systems, exterior stairs, and stair systems shall not allow unintended water to pass within the systems themselves and cause damage to the systems. For purposes of this paragraph, "systems" include, without limitation, framing, substrate, flashing, and sheathing, if any.
(7) Foundation systems and slabs shall not allow water or vapor to enter into the structure so as to cause damage to another building component.
(8) Foundation systems and slabs shall not allow water or vapor to enter into the structure so as to limit the installation of the type of flooring materials typically used for the particular application.
(9) Hardscape, including paths and patios, irrigation systems, landscaping systems, and drainage systems, that are installed as part of the original construction, shall not be installed in such a way as to cause water or soil erosion to enter into or come in contact with the structure so as to cause damage to another building component.
(10) Stucco, exterior siding, exterior walls, including, without limitation, exterior framing, and other exterior wall finishes and fixtures and the systems of those components and fixtures, including, but not limited to, pot shelves, horizontal surfaces, columns, and plant-ons, shall be installed in such a way so as not to allow unintended water to pass into the structure or to pass beyond, around, or through the designed or actual moisture barriers of the system, including any internal barriers located within the system itself. For purposes of this paragraph, "systems" include, without limitation, framing, substrate, flashings, trim, wall assemblies, and internal wall cavities, if any.
(11) Stucco, exterior siding, and exterior walls shall not allow excessive condensation to enter the structure and cause damage to another component. For purposes of this paragraph, "systems" include, without limitation, framing, substrate, flashings, trim, wall assemblies, and internal wall cavities, if any.
(12) Retaining and site walls and their associated drainage systems shall not allow unintended water to pass beyond, around, or through its designed or actual moisture barriers including, without limitation, any internal barriers, so as to cause damage. This standard does not apply to those portions of any wall or drainage system that are designed to have water flow beyond, around, or through them.
(13) Retaining walls and site walls, and their associated drainage systems, shall only allow water to flow beyond, around, or through the areas designated by design.
(14) The lines and components of the plumbing system, sewer system, and utility systems shall not leak.
(15) Plumbing lines, sewer lines, and utility lines shall not corrode so as to impede the useful life of the systems.
(16) Sewer systems shall be installed in such a way as to allow the designated amount of sewage to flow through the system.
(17) Showers, baths, and related waterproofing systems shall not leak water into the interior of walls, flooring systems, or the interior of other components.
(18) The waterproofing system behind or under ceramic tile and tile countertops shall not allow water into the interior of walls, flooring systems, or other components so as to cause damage. Ceramic tile systems shall be designed and installed so as to deflect intended water to the waterproofing system.
B. Structural Related "Actionable" Defects:
(1) Foundations, load bearing components, and slabs, shall not contain significant cracks or significant vertical displacement.
(2) Foundations, load bearing components, and slabs shall not cause the structure, in whole or in part, to be structurally unsafe.
(3) Foundations, load bearing components, and slabs, and underlying soils shall be constructed so as to materially comply with the design criteria set by applicable government building codes, regulations, and ordinances for chemical deterioration or corrosion resistance in effect at the time of original construction.
(4) A structure shall be constructed so as to materially comply with the design criteria for earthquake and wind load resistance, as set forth in the applicable government building codes, regulations, and ordinances in effect at the time of original construction.
C. Soil Related "Actionable" Defects:
(1) Soils and engineered retaining walls shall not cause, in whole or in part, damage to the structure built upon the soil or engineered retaining wall.
(2) Soils and engineered retaining walls shall not cause, in whole or in part, the structure to be structurally unsafe.
(3) Soils shall not cause, in whole or in part, the land upon which no structure is built to become unusable for the purpose represented at the time of original sale by the builder or for the purpose for which that land is commonly used.
D. Fire Protection Related "Actionable" Defects:
(1) A structure shall be constructed so as to materially comply with the design criteria of the applicable government building codes, regulations, and ordinances for fire protection of the occupants in effect at the time of the original construction.
(2) Fireplaces, chimneys, chimney structures, and chimney termination caps shall be constructed and installed in such a way so as not to cause an unreasonable risk of fire outside the fireplace enclosure or chimney.
(3) Electrical and mechanical systems shall be constructed and installed in such a way so as not to cause an unreasonable risk of fire.
E. Plumbing and Sewer Related "Actionable" Defects:
Plumbing and sewer systems shall be installed to operate properly and shall not materially impair the use of the structure by its inhabitants. However, no action may be brought for a violation of this subdivision more than four years after close of escrow.
F. Electrical Related "Actionable" Defects:
Electrical systems shall operate properly and shall not materially impair the use of the structure by its inhabitants. However, no action shall be brought pursuant to this subdivision more than four years from close of escrow.
G. Other "Actionable" Defects:
(1) Exterior pathways, driveways, hardscape, sidewalls, sidewalks, and patios installed by the original builder shall not contain cracks that display significant vertical displacement or that are excessive. However, no action shall be brought upon a violation of this paragraph more than four years from close of escrow.
(2) Stucco, exterior siding, and other exterior wall finishes and fixtures, including, but not limited to, pot shelves, horizontal surfaces, columns, and plant-ons, shall not contain significant cracks or separations.
(3) (A) To the extent not otherwise covered by these standards, manufactured products, including, but not limited to, windows, doors, roofs, plumbing products and fixtures, fireplaces, electrical fixtures, HVAC units, countertops, cabinets, paint, and appliances shall be installed so as not to interfere with the products' useful life, if any.
(B) For purposes of this paragraph, "useful life" means a representation of how long a product is warranted or represented, through its limited warranty or any written representations, to last by its manufacturer, including recommended or required maintenance.
If there is no representation by a manufacturer, a builder shall install manufactured products so as not to interfere with the product's utility.
(C) For purposes of this paragraph, "manufactured product" means a product that is completely manufactured offsite.
(D) If no useful life representation is made, or if the representation is less than one year, the period shall be no less than one year. If a manufactured product is damaged as a result of a violation of these standards, damage to the product is a recoverable element of damages. This subparagraph does not limit recovery if there has been damage to another building component caused by a manufactured product during the manufactured product's useful life.
(E) This title does not apply in any action seeking recovery solely for a defect in a manufactured product located within or adjacent to a structure.
(4) Heating, if any, shall be installed so as to be capable of maintaining a room temperature of 70 degrees Fahrenheit at a point three feet above the floor in any living space.
(5) Living space air-conditioning, if any, shall be provided in a manner consistent with the size and efficiency design criteria specified in Title 24 of the California Code of Regulations or its successor.
(6) Attached structures shall be constructed to comply with inter-unit noise transmission standards set by the applicable government building codes, ordinances, or regulations in effect at the time of the original construction. If there is no applicable code, ordinance, or regulation, this paragraph does not apply.
However, no action shall be brought pursuant to this paragraph more than one year from the original occupancy of the adjacent unit.
(7) Irrigation systems and drainage shall operate properly so as not to damage landscaping or other external improvements. However, no action shall be brought pursuant to this paragraph more than one year from close of escrow.
(8) Untreated wood posts shall not be installed in contact with soil so as to cause unreasonable decay to the wood based upon the finish grade at the time of original construction. However, no action shall be brought pursuant to this paragraph more than two years from close of escrow.
(9) Untreated steel fences and adjacent components shall be installed so as to prevent unreasonable corrosion. However, no action shall be brought pursuant to this paragraph more than four years from close of escrow.
(10) Paint and stains shall be applied in such a manner so as not to cause deterioration of the building surfaces for the length of time specified by the paint or stain manufacturers' representations, if any. However, no action shall be brought pursuant to this paragraph more than five years from close of escrow.
(11) Roofing materials shall be installed so as to avoid materials falling from the roof.
(12) The landscaping systems shall be installed in such a manner so as to survive for not less than one year. However, no action shall be brought pursuant to this paragraph more than two years from close of escrow.
(13) Ceramic tile and tile backing shall be installed in such a manner that the tile does not detach.
(14) Dryer ducts shall be installed and terminated pursuant to manufacturer installation requirements. However, no action shall be brought pursuant to this paragraph more than two years from close of escrow.
(15) Structures shall be constructed in such a manner so as not to impair the occupants' safety because they contain public health hazards as determined by a duly authorized public health official, health agency, or governmental entity having jurisdiction. This paragraph does not limit recovery for any damages caused by a violation of any other paragraph of this section on the grounds that the damages do not constitute a health hazard.
The standards set forth in the Code are intended to address every function or component of a structure. 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.
---------------------------------------------------------------------------------------------------------------------
PRE-LITIGATION PROCEDURES
---------------------------------------------------------------------------------------------------------------------
Notice - The claimant must provide the builder with written notice (personally or via certified or overnight mail) alleging one or more of the "actionable defects".
Response to Notice - The builder must provide the claimant (and his or her attorney, if any) with written acknowledgment that it has received notice of the claim with 14 days after its receipt (or the homeowner is released from the pre-litigation procedures).
Document Production - Within 30 days of a written request by a homeowner, the builder must provide (at the homeowner's expense) copies of relevant plans and specifications, mass or rough grading plans, final soils reports, Department of Real Estate public reports, and available engineering calculations; maintenance recommendations; manufactured products maintenance and warranty information; and the builder's own contractual warranties at the time of the original sale. The builder must record on title and include in the original sales documentation a notice of the existence of the procedures and notice that such procedures affect the homeowner's legal rights.
Inspection and Testing - Within 14 days after acknowledging receipt of a notice of claim, the builder, at its sole expense, may complete initial inspection and testing. If, within three days of the initial inspection, the builder requests a second inspection or testing and lists the reasons therefor, such second inspection and/or testing shall be completed within 40 days of the initial inspection. If the builder intends to hold a third party responsible for the defect, it must give such third party sufficient notice that the third party can participate in the inspection and/or testing.
Repair Procedure-
(1) Offer to Repair and Pay Damages - Within 30 days following the initial or, where applicable, second inspection, the builder may offer in writing to repair the defect(s) and to compensate the homeowner for all applicable damages recoverable elsewhere in this title. The written offer must include the nature, scope and location of the repair, the date for completion of the repair, and other information. If the builder offers to repair some, but not all alleged defects, the offer must include the reasons and support for not repairing all alleged defects.
(2) Response to Offer - Within 30 days of receipt of the offer to repair, the homeowner may either authorize the repair or request a referral to three alternative contractors. In the latter case, the builder must provide the referral within 35 days and, within 20 days thereafter, the homeowner shall authorize the repairs.
(3) Start of Repair - Any repair must be started within 14 days of the homeowner's authorization or within seven days of a mediation or within five days after a permit is obtained.
(4) Completion of Repair - The builder shall complete the repairs "as soon as reasonably possible" and shall make "every effort" to complete repairs within 120 days. If the repairs are not completed within the time specified in the repair offer, the homeowner is released from the prelitigation procedures of this chapter.
(5) Documentation - The builder must provide the homeowner with all documents relating to the repairs.
(6) Release - The builder is not entitled to a release or waiver in exchange for the repair work, but may obtain a release in exchange for a cash payment in settlement of the claims.
(7) Subsequent Lawsuit - Following completion of the repair, the homeowner may sue the builder for violation of the actionable defects or for inadequate repair or both.
Mediation - The builder's offer to repair shall also include an offer to mediate for four hours (unless the parties agree to extend it) before a "nonaffiliated mediator" selected and paid for by the builder (or jointly selected if the homeowner splits the cost). The mediation must take place within 15 days. If no mediation takes place prior to repair, the homeowner must request mediation before filing an action. As with the pre-repair mediation, the post-repair mediation must take place within 15 days and will be limited to four hours (unless the parties agree to extend the time) before a "nonaffiliated mediator" selected and paid for by the builder (or jointly selected if the homeowner splits the cost).
Cash Offer - The builder is permitted to make a cash offer in lieu of a repair offer. If the homeowner rejects the offer, he or she may file an action.
Homeowner's Failure to Follow Statute - The builder may bring a motion to stay any court or other proceeding until the requirements of the pre-litigation procedures are complied with.
Evidence - The fact that a repair effort was made is admissible, as is the pre-repair condition and any other conduct of the parties during the pre-litigation procedure (with the exception of mediation).
-----------------------------------------------------------------------------------------------------------
SPECIFIC STATUTES OF LIMITATION
------------------------------------------------------------------------------------------------------------
A statute of limitation is the time frame in which a lawsuit must be filed. Generally, no action may be brought more than ten years after substantial completion or the date a valid notice of completion is recorded. However, certain defects have significantly shorter statutes of limitation as a result of Senate Bill 800.
SB800's first change was to eliminate the distinction between patent and latent defects. In its place, it imposed a general ten-year statute of repose for violation of SB800 building standards. Accordingly, a homeowner may file suit for construction defect within ten years. The ten-year period begins to run on substantial completion of the residence.
Notwithstanding the general ten-year statute of repose, SB800 imposes shorter deadlines for filing suit, according to the component or function of the residence affected by a construction defect. In most cases, the shorter statutes of limitations are triggered by the close of the escrow on the original sale of the residence.
Five Year Statute of Limitations
(1) Homeowners must file claims for the failure of paints or stains within five years of the close of escrow.
Four Year Statute of Limitations
(1) Homeowners must file suit for violation of plumbing, sewer or electrical building standards within four years of the close of escrow.
(2) Homeowners must file claims for "significant" or "excessive" displacement in exterior hardscape within four years of the close of the original escrow.
(3) Homeowners must file claims for corrosion of untreated steel frames and components within four years of the close of the original escrow.
Two Year Statute of Limitations
(1) Homeowners must file suit for failure to properly install dryer ducts within two years of the close the original escrow.
(2) Homeowners must file suit for the failure of a landscape system to survive for one year within two years from the close of the original escrow.
(3) Homeowners must file claims for decay of untreated wooden posts within two years of the close of original escrow.
One Year Statute of Limitations
(1) Homeowners must file suit for failure of irrigation and drainage systems within one year of the close of the original escrow.
(2) Homeowners alleging violation of inter-unit noise standards must file suit within one year of the original occupancy of an adjacent unit.
---------------------------------------------------------------------------------------------------------------------
RECOVERABLE DAMAGES
---------------------------------------------------------------------------------------------------------------------
The homeowner may recover the following:
(1) Reasonable cost of repairing the defect itself (for a detached single family residence, this is defined as the lesser of the cost of repair or the diminution in current value caused by the defect),
(2) Reasonable cost of repairing any damage resulting from the repair of the defect,
(3) Reasonable cost of repairing any damage resulting from the defect,
(4) Reasonable cost of removing and replacing any improper repair by the builder,
(5) Reasonable relocation and storage expenses,
(6) Lost business income if the home was used as a principal place of a business licensed to be operated from it,
(7) Reasonable investigative costs for each established defect, and
(8) All other costs recoverable by contract or statute.
---------------------------------------------------------------------------------------------------------------------
BUILDER/CONTRACTOR AFFIRMATIVE DEFENSES
---------------------------------------------------------------------------------------------------------------------
The following statutory defenses may be asserted by the builder and if proven will excuse the builder from liability:
(1) to the extent the defect was caused by an Act of God
(2) to the extent the defect was caused by an homeowner's unreasonable failure to minimize or prevent damage
(3) to the extent the defect was caused by the homeowner's failure to follow the builder's or manufacturer's recommendations or commonly accepted maintenance obligations
(4) to the extent the defect was caused by alterations, ordinary wear and tear, misuse, abuse or neglect, or by the structure's use for something other than its intended purpose
(5) if the statute of limitations has run
(6) if a release has been obtained
(7) in the event of a successful repair
