Construction Defects in New California Homes

What the Act covers

Title 7 of the Civil Code, sections 895 and following, applies to new residential construction. That means a dwelling, another building, or an improvement on a lot or within a common area. It covers single homes, attached units and common interest developments, and a claim can be brought by an individual owner or by an association.

Defect claims do not have to rest on general negligence principles, because the Act sets out standards the construction is required to meet. They cover water intrusion, structural performance, soils and a range of building systems. A failure to meet a standard is the basis of the claim.

The step people miss

The Act establishes a pre-litigation procedure. Before any lawsuit, the builder is entitled to notice of the claimed defects, and to a chance to inspect and to offer to repair.

Filing without following it is the most common procedural failure in these matters, and it usually costs time rather than the claim itself. But where a limitation deadline is close, time is what there is least of.

The procedure also has a practical benefit. A builder who repairs the work properly at this stage gives the homeowner a better outcome than a lawsuit would. It is faster, and it avoids the cost of the case.

Why these cases need experts early

Establishing that the construction failed to meet a standard is a technical question, not a legal one. It takes people who can open up the work, document what sits behind it, and explain how the defect caused the damage.

That evidence has to be gathered before repairs are made. For a homeowner living with an active problem, that is an awkward position to be in. Where a repair cannot wait, document the work thoroughly before and during it. Once it is closed back up, the opened-up condition will not exist again.

Deadlines

The Act contains its own limitation periods. Different components carry different periods, and they run from different events. A roof, a plumbing system and a structural element are not all on the same clock.

The periods vary, and the pre-litigation procedure takes time of its own. So the useful step, once you find a problem, is to work out where the deadlines stand early. Do not wait until the builder has spent several months not responding.

The pre-litigation sequence

The homeowner serves notice of the claimed defects on the builder. The notice needs to describe the claim in reasonable detail, because what it says defines what the process addresses.

The builder acknowledges the notice and may inspect, including testing, and may take a second inspection where the first one points to the need.

The builder may then offer to repair, setting out what it proposes to do and when, or may offer compensation instead.

The homeowner may accept, or may request an alternative contractor from those the builder offers. The builder then has set periods to respond and to finish the work. Miss those, or leave the repair undone, and the homeowner is generally released from the process and may proceed.

The sequence is workable, but it does not forgive missed steps, and defined timeframes run through the whole of it.

Documenting before the builder arrives

The builder will inspect, and its own expert will form a view. The homeowner's position is much stronger where the condition has already been documented independently.

Photograph and video everything, with dates, including behind and beneath finishes if anything has already been opened. Write down the history, meaning when the problem appeared, in what conditions, and how it has progressed. Where water is involved, note the weather and the pattern. Leaks that come and go are often blamed on how the owner lives in the house.

Retain your own expert early where the defect is structural, or involves water intrusion or soils. The report shapes what goes in the notice, and a notice that describes the symptom rather than the defect narrows what the process addresses.

Where the deadlines sit

The Right to Repair Act contains its own limitation periods, and they are not all the same. Different components carry different periods, running from different events, so one property can have several clocks going at once.

The pre-litigation procedure also takes time of its own. Say a homeowner finds a problem, waits to see whether it worsens, then serves notice and waits through the builder's response periods. The window that is left can be short.

The practical rule is to work out where the deadlines stand at the point of discovery, not at the point of frustration.

This article is general information about California law and is not legal advice for any specific situation. If you are dealing with this issue, the facts of your matter will change the analysis.