TITLE 6

ACTIONS IN PARTICULAR CASES

CHAPTER 25

NOTICE AND OPPORTUNITY TO REPAIR ACT

6-2503.  Notice and opportunity to repair. (1) Prior to commencing an action against a construction professional for a construction defect, the claimant shall serve written notice of claim on the construction professional. The notice of claim shall state that the claimant asserts a construction defect claim against the construction professional and shall describe the claim in reasonable detail sufficient to determine the general nature of the defect. Any action commenced by a claimant prior to compliance with the requirements of this section shall be dismissed by the court without prejudice and may not be recommenced until the claimant has complied with the requirements of this section. If a written notice of claim is served under this section within the time prescribed for the filing of an action under this chapter, the statute of limitations for construction-related claims is tolled until sixty (60) days after the period of time during which the filing of an action is barred.

(2)  Within twenty-one (21) days after service of the notice of claim, the construction professional shall serve a written response on the claimant. The written response shall:

(a)  Propose to inspect the residence that is the subject of the claim and to complete the inspection within a specified time frame. The proposal shall include the statement that the construction professional shall, based on the inspection, offer to remedy the defect, compromise by payment, or dispute the claim;

(b)  Offer to compromise and settle the claim by monetary payment without inspection; or

(c)  State that the construction professional disputes the claim and will neither remedy the construction defect nor compromise and settle the claim.

(3)  (a) If the construction professional disputes the claim or does not respond to the claimant’s notice of claim within the time stated in subsection (2) of this section, the claimant may bring an action against the construction professional for the claim described in the notice of claim without further notice.

(b)  If the claimant rejects the inspection proposal or the settlement offer made by the construction professional pursuant to subsection (2) of this section, the claimant shall serve written notice of the claimant’s rejection on the construction professional. After service of the rejection, the claimant may bring an action against the construction professional for the construction defect claim described in the notice of claim. If the construction professional has not received from the claimant, within thirty (30) days after the claimant’s receipt of the construction professional’s response, either an acceptance or rejection of the inspection proposal or settlement offer, then at anytime thereafter the construction professional may terminate the proposal or offer by serving written notice to the claimant, and the claimant may thereafter bring an action against the construction professional for the construction defect claim described in the notice of claim.

(4)  (a) If the claimant elects to allow the construction professional to inspect in accordance with the construction professional’s proposal pursuant to subsection (2)(a) of this section, the claimant shall provide the construction professional and its contractors or other agents reasonable access to the claimant’s residence during normal working hours to inspect the premises and the claimed defect.

(b)  Within fourteen (14) days following completion of the inspection, the construction professional shall serve on the claimant:

(i)   A written offer to remedy the construction defect at no cost to the claimant, including a report of the scope of the inspection, the findings and results of the inspection, a description of the additional construction necessary to remedy the defect described in the claim and a timetable for the completion of such construction;

(ii)  A written offer to compromise and settle the claim by monetary payment pursuant to subsection (2)(b) of this section; or

(iii) A written statement that the construction professional will not proceed further to remedy the defect.

(c)  If the construction professional does not proceed further to remedy the construction defect within the agreed timetable, or if the construction professional fails to comply with the provisions of subsection (4)(b) of this section, the claimant may bring an action against the construction professional for the claim described in the notice of claim without further notice.

(d)  If the claimant rejects the offer made by the construction professional pursuant to subsection (4)(b)(i) or (ii) of this section to either remedy the construction defect or to compromise and settle the claim by monetary payment, the claimant shall serve written notice of the claimant’s rejection on the construction professional. After service of the rejection notice, the claimant may bring an action against the construction professional for the construction defect claim described in the notice of claim. If the construction professional has not received from the claimant, within thirty (30) days after the claimant’s receipt of the construction professional’s response, either an acceptance or rejection of the offer made pursuant to subsection (4)(b)(i) or (ii) of this section, then at any time thereafter the construction professional may terminate the offer by serving written notice to the claimant.

(5)  (a) Any claimant accepting the offer of a construction professional to remedy the construction defect pursuant to subsection (4)(b)(i) of this section shall do so by serving the construction professional with a written notice of acceptance within a reasonable time period after receipt of the offer and no later than thirty (30) days after receipt of the offer. The claimant shall provide the construction professional and its contractors or other agents reasonable access to the claimant’s residence during normal working hours to perform and complete the construction by the timetable stated in the offer.

(b)  The claimant and construction professional may, by written mutual agreement, alter the extent of construction or the timetable for completion of construction stated in the offer including, but not limited to, repair of additional defects.

(6)  Written or oral statements made by a claimant or by a construction professional in the course of complying with the procedures required or authorized by this section shall not be considered an admission of liability and shall not be admissible in an action subject to this section.

(7)  Nothing in this section shall be construed to prevent a claimant from commencing an action on the construction defect claim described in the notice of claim if the construction professional fails to perform the construction agreed upon, fails to remedy the defect or fails to perform by the timetable agreed upon pursuant to subsection (4)(b) or (5)(b) of this section.

History:

[6-2503, added 2003, ch. 133, sec. 1, p. 387.]