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Following California’s Right to Repair Act to the “T”

Construction & Contractor Disputes, Legal Update, and Real Estate Law

With the increase in new homes sprouting up in the greater Bay Area it is important to understand California’s Right to Repair Act.  The California Court of Appeal recently issued a case of first impression:  Must homeowners serve notice of a construction defect claim in order to obligate a builder to produce documents requested under the Right to Repair Act?

The answer is yes!  Under the Right to Repair Act a builder may halt a construction defect lawsuit and withhold requested documents if the homeowner fails to first serve the builder with the required pre-litigation notice.

California’s Right to Repair Act (the “Act”) is a law that was enacted on January 1, 2003, and only applies to new residential units sold on or after January 1, 2003. The Act establishes a non-adversarial inspection and repair procedure that allows builders to attempt to resolve homeowners’ construction defect claims in advance of (or avoidance of) litigation. The Act requires a homeowner to first serve the builder with notice of a construction defect claim.  The Act also allows the homeowner to serve a request for certain documents and requires the builder to produce those documents within a specified time.

In Darling v. Western Pacific House, Inc., the Homeowner requested documents from the builder, Western Pacific House Inc. (“Western Homes”), related to the alleged defective construction of his home.  The Homeowner had not served a notice of the construction defect claim.  Western Homes failed to provide the requested documents which resulted in the Homeowner filing a lawsuit.  Western Homes then filed a motion to stay the litigation based on the Homeowner’s failure to provide pre-litigation notice of the claim as required by the Act.

The court agreed and stayed the action against Western Home.  Here, the Act provides a clear pre-litigation procedure that allows builders an opportunity to repair a construction defect before litigation is commenced.  The Homeowner requested documents from Western Homes pursuant to the Act, but failed to first provide the required pre-litigation notice of the intended lawsuit.   The Court of Appeals found that giving notice of the constructive defect claim was a prerequisite for pursuing discovery under the Act.   Because the Homeowner’s document request was part of the pre-litigation procedure under the Act, there could be no document production required until the pre-litigation notice was properly given.

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