Constructing a home can be a lengthy and potentially tedious process. Finding a crack in the foundation or poor electric wiring can overshadow the excitement of moving into a new home. Discovering a serious defect in a new house can be frustrating for new homeowners and they may want to seek quick legal action under the Right to Repair Act to repair the defect and settle into their new home. However, before a homeowner can commence legal action, they must serve notice of the defect to the contractor. This allows the contractor an opportunity to fix the defect prior to the threat of litigation.
Homeowners who seek legal recourse against a contractor must comply with the notice requirements under the Right to Repair Act before filing an action.
Before a property owner can bring a claim against a contractor for a construction defect, proper notice must be given to the contractor prior to filing a lawsuit. Proper notice involves giving the contractor: (1) notice of the claim; (2) an opportunity to inspect the defect; and (3) an opportunity to either offer a settlement and/or repair the defect. Failure to provide proper notice and follow strict deadlines can affect the homeowner’s ability to file a lawsuit or other action.
For notice to be “sufficient” under the requirement, a homeowner must serve written notice to each responsible contractor and identify the defect. The homeowner must describe the claim(s) in sufficient detail and explain the nature and results of the defects. Further, the homeowner should also include any evidence, in the form of photographs, videotapes and expert reports that depict the nature of the construction defect. Notice should be sent to the last known address of each responsible contractor at least ninety days before the property owner can initiate a lawsuit. If the statute of limitations is about to expire, the homeowner can file the law suit, but must still comply with all the notice requirements.
The Contractor Has the Right of Inspection After Receiving Notice
Once the contractor has received the notice of the defect from the homeowner, he can request to inspect the defects to gauge the course of action required. Within thirty days of receiving a contractor’s request to inspect the defects, the homeowner must provide the contractor and any of his agents with prompt reasonable access to inspect and document all alleged defects. Contractors can perform any destructive or nondestructive testing to evaluate the nature of the claimed defects. If destructive testing is required, the contractor has to give the homeowner advance notice of the tests and then return the inspected area to its pretesting condition. If the contractor desires to further inspect the defect, he must provide notice to the homeowner. In a situation where a claim is being asserted on behalf of a condominium or multi-resident complex, the contractor can inspect each of the dwellings or common areas which may be or appear to be affected by the alleged defect.
Within fourteen days following completion of the inspection and testing, the contractor must offer to: (1) fully or partially remedy the defect at no cost to the homeowner; (2) settle the claim by monetary payment; (3) remedy the defect and provide payment; or (4) fully reject the claim and do nothing. Whichever remedy the contractor elects, he or she must convey this in writing to the homeowner.
Contractor rejection of claim or refusal to remedy the defect:
If the contractor rejects the claim and refuses to remedy the defect or settle the claim or fails to respond within the thirty day period: the homeowner can bring an action against the contract for the claims described in the notice of claim without further notice. If the contractor fails to respond within thirty days, he cannot claim lack of notice as a defense. The notice requirement does not apply when the defect has resulted in death or personal injury. Defects that are discovered after initial notice has been served must be filed in a separate notice form.
Homeowner accepts the contractor’s settlement offer or offer to repair the defect:
If contractor gives the homeowner a settlement offer to remedy the defect, the homeowner must give written notice of acceptance within thirty days of receiving the offer. If the homeowner fails to respond within thirty days, the offer is deemed accepted automatically. The homeowner must provide the contractor prompt and unfettered access to the area where the defect is located to perform and complete construction as set forth by the settlement offer.
Homeowner rejection of the contractor’s settlement offer or offer to repair the defect:
In this case, the homeowner must give the contractor written notice of his rejection of the contractor’s offer. The notice has to include all the known reasons for the homeowner’s rejection of the contractor’s offer. At that point, the contractor must make a supplemental offer of repair, monetary payment, or both if he so desires, within fifteen days of receiving the rejection. If the homeowner rejects the supplemental offer, he must serve written notice listing all known reasons for rejecting the supplemental offer.
However, if the homeowner rejects a reasonable offer or supplemental offer they may not recover money in an excess of the fair market value of the settlement or actual cost of the repairs made or the amount of a monetary offer of settlement. Once a homeowner discovers a defect in their house, they should take action to prevent any further damage. The contractor is only responsible for the existing damage from the defect.
Providing the contractor with notice of the defect is can provide faster relief than suing the contractor for damages. Although legal remedies are traditionally the way to fix a problem, providing notice to the contract will open the door to conversation and bring parties closer to informal resolution of issues. Informal resolutions are generally cheaper and more amicable. This is something to keep in mind when a defect is discovered. Complying with the notice requirements is an important step in resolving a defect with the contractor. Failure to follow the strict notice requirements could result in lack of compensation or delays in resolution and repair. Contact KPPB LAW for more information.
Source: O.C.G.A. § 8-2-35
