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Construction Defect and the Right to Repair

The explosion of construction defect litigation was the catalyst for reform with respect to claims against builders, including contractors and subcontractors. With the goal of reducing litigation while balancing homeowner rights to own safe homes, a number of states passed legislation giving a builder the right to repair or cure any alleged defects. Though each state's legislation is unique, there are several key components that seem to be universal.

In the states with "right to repair" legislation, the threshold hurdle that a homeowner faces is to provide the builder with written notice of the defect within a specified timeframe. The homeowner's right to bring a construction defect action is dependent on compliance with the notice provision.

Once a builder is notified of the defect, he must be given an opportunity to cure the defect. The builder may inspect the home and perform any necessary tests to discern the nature of the defect, if any. Thereafter, he has an absolute right to repair the defect. Additionally, in lieu of making any repairs, builders are usually allowed to offer the homeowner monetary compensation for the defect. The homeowner's right to file a construction defect action stems from either the builder's failure to effectuate the repairs at all or failure to adequately repair the defect in a good and workmanlike manner.

Where the right to repair is not guaranteed to a builder via statute, builders may still protect themselves by including a notice and right to repair provision in their construction contract. Through their contract, the parties could stipulate that the builder would not be liable for breach of the contract arising out of the work performed absent notice to the builder with the concomitant opportunity to cure the breach.


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