Obligations for Construction Defect Actions

Section 900 provides that the builder must provide a homebuyer with a minimum one-year express written limited warranty covering the fit and finish of the following building components. Any fit and finish matters covered by this warranty are not subject to the provisions of this title. If a builder fails to provide the express warranty required by this section, the warranty for these items is for a period of one year.

Section 901 states that a builder may offer greater protection or protection for longer time periods in its express contract with the homeowner than that set forth in Chapter 2. A builder may not limit the application of Chapter 2 or lower its protection through the express contract with the homeowner. This type of express contract constitutes an “enhanced protection agreement.”

Section 902 says that, if a builder offers an enhanced protection agreement, the builder may choose to be subject to its own express contractual provisions in place of the provisions set forth in Chapter 2.

Section 903 states that, if a builder offers an enhanced protection agreement in place of the provisions set forth in Chapter 2, the election to do so must be made in writing with the homeowner no later than the close of escrow. The builder has to provide the homeowner with a complete copy of Chapter 2 and advise the homeowner that the builder has elected not to be subject to its provisions.

Section 904 explains that, if a builder has elected to use an enhanced protection agreement, and a homeowner disputes that the particular provision or time periods of the enhanced protection agreement are not greater than, or equal to, the provisions of Chapter 2 as they apply to the particular deficiency alleged by the homeowner, the homeowner may seek to enforce the application of the standards set forth in this chapter as to those claimed deficiencies. 

Section 905 provides that, if a homeowner seeks to enforce Chapter 2, in lieu of the enhanced protection agreement in a subsequent litigation or other legal action, the builder has the right to have the matter bifurcated, and to have an immediately binding determination of his or her responsive pleading within 60 days after the filing of that pleading, but in no event after the commencement of discovery.

Section 906 says that a builder’s election to use an enhanced protection agreement addresses only the issues set forth in Chapter 2 and does not constitute an election to use or not use the provisions of Chapter 4.

Section 907 states that a homeowner is obligated to follow all reasonable maintenance obligations and schedules communicated in writing to the homeowner by the builder and product manufacturers, as well as commonly accepted maintenance practices. A failure by a homeowner to follow these obligations, schedules, and practices may subject the homeowner to the affirmative defenses.