SAN FRANCISCO – The California Supreme Court on Jan. 18 sought to end uncertainty over the state’s Right to Repair Act in deciding that a party who encounters defective home construction can file suit and no longer has to wait until a building defect has caused property damage or injury.

“The recent California Supreme Court case held that the Right to Repair Act was the exclusive remedy for construction defect claims,” attorney David A. Frenznick of Wilke, Fleury, Hoffelt, Gould & Birney LLC, told  Northern California Record.

David A. Frenznick
David A. Frenznick

The judgment came about as a result of a review of a 5th District Court of Appeals decision in the case McMillin Albany LLC v. Superior Court and supersedes a court judgment in 2000 the Aas v. Superior Court case.

“That rule (Aas) held that construction defects that had not caused actual damage were not actionable,” Frenznick said.

The California General Assembly adopted the Right to Repair Act in 2002 after the state Supreme Court had denied property owners the right to sue for building mistakes that had not resulted in actual damage to property. Designated SB 800, the Right to Repair Act reversed the Aas decision, which had said that regarding building defects, liability was limited to physical injury, and no recovery by a plaintiff was allowed solely for economic loss.

“Now homeowners need only show a violation of the performance standards set forth in the Right to Repair Act,” Frenznick said. “There is no longer a requirement that actual damage be shown.”

Earlier, California appeals courts had reached contrary opinions on the scope of the act concerning building defects.

“The McMillan decision settled a split in authority among the appellate districts,” Frenznick said. 

Homeowners claiming economic damages because of faulty construction must comply first with pre-litigation procedures specified in the Right to Repair Act before filing a lawsuit.

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