Right to Repair Act : Builder ’ s Perform ance of Repairs and the Owner ’ s Right to File an Action

In a case where the Builder has complied fully and strictly with all of the document notice requirements to the Owner as set out in Civil Code § 912, and no other problems or deficiencies exist in the documents, and the Builder is asserting their right to repair and intends to actually perform repairs, it’s important to identify the specific requirements that the Builder must meet in performing the repairs and the Owner’s rights. If a Builder fails to comply with any of these requirements, including Civil Code § 917-930, then the Builder loses the right to repair and is not entitled to the protections of Chapter 4 (the pre-litigation procedures) of the Right to Repair Act and the Owner is released from these obligations and may proceed with filing an action.

In the case of Builder repair, and after the notice of the defects, the exchange of documents and the Builder’s inspection of the home (noting that if the Builder fails to complete the inspections in a timely manner, the Owner is released) within 30 days the Builder is required to make an offer in writing to repair. The offer to repair shall also compensate the homeowner for all applicable damages recoverable under Section 944, within the timeframe for the repair set forth in this chapter. Any such offer shall be accompanied by a detailed step-by-step statement identifying the particular violation that is being repaired, explaining the nature, scope, and location of the repair, and setting a reasonable completion date for the repair. The offer shall also include the names, addresses, telephone numbers, and license numbers of the contractors whom the builder intends to have perform the repair. Those contractors shall be fully insured for, and shall be responsible for, all damages or injuries that they may cause to occur during the repair, and evidence of that insurance shall be provided to the homeowner upon request. Civil Code § 917.

The compensation includes any damages and costs of repair not covered by the written offer to repair, all reasonable investigative costs incurred to establish each violation of the building standards and any other damages available by law or contract. Civil Code § 944.

The written offer must advise the Owner of their right to request up to 3 additional contractors from which to select to perform the repair, who in turn are given an opportunity to inspect and offer bids to the Builder to perform the repairs. These alternate contractors must be fully licensed and, whichever alternate is authorized by the Owner, is to be fully paid by the Builder.If the Builder fails to make the alternate contractor offers of repair, the Owner is released. If the repair is not completed in the time specified, the Owner is released. The Builder is required to allow the Owner to observe and record the repairs, and the Builder is required to provide the Owner with copies of the correspondence and photographs related to the repairs.

Any Builder failure to comply with any of these requirements releases the Owner to file an action. If the Builder elects to repair some but not all of the unmet standards, the Builder shall, at the time of the offer, set forth with particularity the reasons and the support for not repairing any unmet standards. These unmet standards remain the Owner’s right to pursue in an action, after the offer to repair is completed, or any time the Builder fails to comply with the repair requirements and deadlines.

Critically, at the conclusion of the repairs, there is no Owner release of the Builder in exchange for the repairs. At the conclusion of the repairs, the Owner may proceed with an action for inadequate or incomplete repair or violation of the building standards, or both, including all applicable damages under Civil Code § 944.

In other words, the Builder does not have any unilateral right to repair certain violations and ignore others, or to perform incomplete and inadequate repairs, or require the Owner to accept any repairs or to release the Builder, or to fail to pay the Owner’s damages in full. Rather, the Owner maintains their right to strict compliance with the repair specifications, including the right to request and authorize independent/alternate contractors to perform the repairs, which must comply with the building standards and the performance specifications noted above, including payment of compensation for damages at the time the written offer is made in full.

Under the Right to Repair Act, the Owner is protected from any failure by the Builder to comply with the building standards in the performance of the repairs and the payment of all damages by the right to file an action for any failure in performance or payment by the Builder and for all damages under Civil Code § 944.