by Dale Ortmann, Esq.
Many practitioners believed that the procedurally complex Right to Repair Act (“RRA”) provided the exclusive remedy to a homeowner claiming damages for residential construction defects. The RRA was intended to provide for a non-adversarial procedure for the homeowner and builder to follow in an attempt to resolve the dispute. Though well intentioned, the RRA includes a complex labyrinth of pre-litigation procedures with 20 separate time deadlines, and often delays rather than facilitates a resolution of a residential defect dispute.
Although the RRA was enacted in 2003, it was not until six months ago that the courts answered the homeowner’s question: “Do I have to do this?” According to two recent opinions, one decided last month, the answer is an emphatic “no”, at least in most cases.
In Burch v. Superior Court (2014 DJ DAR 1991), the Second District Court of Appeal held that the RRA does not provide the exclusive remedy for a homeowner seeking damages for construction defects that have resulted in property damage –which is most every situation. The homeowner can pursue common-law remedies (including breach of contract, negligence, etc.) and proceed to court or arbitration without traversing the RRA pre-litigation procedural minefield. The RRA procedures remain optional for those homeowners wishing to follow them.
Dale Ortmann is a Shareholder with Hunt Ortmann, a leader in California construction law. If you have any questions about this bulletin or the Right to Repair Act, please contact him at ortmann@huntortmann.com.