The California Legislature is considering legislation that would dramatically alter the landscape of residential construction defect litigation. Assembly Bill 1903, currently pending before the Senate Judiciary Committee, proposes extensive amendments to California's Right to Repair Act (Civil Code sections 895-945.5) that would substantially strengthen procedural protections for builders while narrowing the scope of recoverable construction defect claims.

If enacted, the legislation would affect virtually every stage of a construction defect dispute- from the initial notice of claim through litigation and settlement- and would introduce an entirely new certification process for newly constructed condominium projects. This article details some of the most significant proposed changes.

Higher Burden for Construction Defect Plaintiffs
Perhaps the most consequential change is the bill's modification of the proof required to establish liability. current law generally requires a claimant to demonstrate the residence fails to satisfy one of the statutory performance standards established under the Right to Repair Act. AB1903 would instead require claimants to establish three separate elements:

• A violation of an applicable statutory performance standard;
• The violation caused appreciable, present, non-speculative physical damage to another building component; and
• The violation resulted from the original construction.

Reprinted courtesy of Thomas D. Fama, Wood Smith Henning Berman and Andrew J. Mallon, Wood Smith Henning Berman

Mr. Fama may be contacted at tfama@wshblaw.com
Mr. Mallon may be contacted at amallon@wshblaw.com