It is not uncommon for a homeowner to hire a contractor to do some work, and then for a dispute to arise regarding the construction. The homeowner’s instinct may be to run to the courthouse, but Georgia law provides for the parties to attempt to resolve the matter between themselves before involving the Court. Specifically, there is a statute called the “Resolution of Construction Defects Act” (“RCDA”), which is sometimes also known as the “Right to Repair Act”. If a homeowner files suit without complying with the RCDA, the Act provides for the case to be stayed until compliance is made, although the Act also expressly provides that it does not toll any applicable statute of limitations.
[This article is from the perspective of the contractor. For the homeowner’s perspective, please review this article.]
Compliance with the RCDA may be tedious and time-consuming, but it is not difficult. The statute provides as follows:
- RCDA § (b) – The process starts with a semi-formal notice of claim submitted in writing by the homeowner (H). The contractor (C) is required to respond in writing within 30 days, or else H has a green light to file suit. The response must contain either (1) an offer to pay for and/or repair the issue, or (2) a demand to inspect the impacted area(s) of the property.
- RCDA § (e) – If C demands an inspection (which will happen in almost every non-trivial case), H must provide reasonable access. C must endeavor to complete the inspection within 30 days, though the Act does provide for the inspection to be completed within a “reasonable period” even if it takes longer than 30 days. C is allowed to engage in destructive testing if necessary to evaluate the claim, but C must restore the property to its pretesting condition.
- RCDA § (f) – Within 14 days after the inspection is completed, C must make a written offer to pay, repair, or a combination of the two; or C must certify in writing that C will proceed no further to attempt to inspect or remedy the claimed defect(s), with an explanation. Failure to timely comply with this provision will authorize H to file suit. If C makes an offer and H does not timely reject the same, then H will be deemed to have accepted that offer.
- RCDA § (j) – If H rejects C’s offer (which rejection must be in writing and must contain an explanation of why said offer is being rejected), C has an opportunity to make a supplemental offer to repair and/or pay. Such supplemental offer must be made within 15 days of receipt of H’s rejection, but the Act does not mandate that it be in writing (though that is a good idea, for obvious reasons).
The RCDA [§ (m)] provides that if H rejects a “reasonable” offer made by C, then H’s recovery will be limited to the fair market value of the offer or the actual cost of repairs made; or if C’s offer was for payment of money, then H’s recovery will be limited to that amount. In addition, H will not be entitled to recovery of attorney’s fees. The RCDA provides that whether an offer is “reasonable” will be determined by the trier of fact.
Finally, it should be noted that the RCDA [§ (p)] does provide that H and C may make a “written mutual agreement” to deviate from the process established by the Act at any time after H makes the first demand. However, as a practical matter, the RCDA favors contractors so heavily that C generally has little or no incentive to agree to a different procedure. The most likely scenario where a contractor might be convinced to a more streamlined procedure (or possibly arbitration) might be where the cost/value of the repairs is relatively low.
Every person in this country has a constitutional right to represent themselves in any and all phases of a legal or quasi-legal proceeding, and navigating a homeowner-contractor dispute under the RCDA is no exception. However, serious legal rights are implicated in the RCDA, and there are traps for the unwary, particularly as relates to timing issues. The wise homeowner, and the wise contractor, will engage qualified legal counsel to assist with such a claim at the earliest opportunity.