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 homeowner. For the contractor’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 § (a), (c) – The homeowner (H) must provide the contractor (C) with written notice of the claimed defects, with sufficient detail and documentation to identify the problem(s). Such notice must be provided at least ninety (90) days before filing suit, but if C does not respond within 30 days or responds but denies the claim, with no offer to pay or make repairs, then H will be deemed to have complied with the RCDA and may then file suit immediately.
- RCDA § (d) – If C responds to H’s initial notice with an offer to pay or repair, if H intends to reject that offer, then H must do so in writing, with an explanation of the rejection. H will then be deemed to have complied with the RCDA and may then file suit immediately. Note, however, that if C’s offer is later deemed “reasonable”, then H’s recovery may be limited (see below).
- RCDA § (e) – If C responds to H’s initial notice with a demand for inspection, H is required to provide “prompt and reasonable access” for C to inspect, which C is to complete within 30 days if possible.
- RCDA § (f), (i) – Within 14 days after C’s inspection, C is required to make a written offer to pay, repair, or both, or else confirm in writing that C will proceed no further to remedy the dispute, with an explanation as to why. H may reject C’s offer but must do so in writing, with an explanation of the rejection, within 30 days or else will be deemed to have accepted it. Once again, if C’s offer is later deemed “reasonable”, then H’s recovery may be limited (see below). If C does not timely make an offer, then H will be deemed to have complied with the RCDA and may then file suit immediately.
- RCDA § (j), (k) – Just because H rejects C’s offer doesn’t mean we’re all done with the RCDA – C has an opportunity to make a supplemental offer, which must be made within 15 days after H’s rejection of the previous offer. Curiously, the statute does not require this offer to be made in writing, but if H wishes to reject the supplemental offer, the rejection must once again be in writing, with an explanation of the rejection, within 30 days or else will be deemed to have accepted it. As before, if C’s supplemental offer is later deemed “reasonable”, then H’s recovery may be limited (see below).
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.