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Please note that the following article is strictly to provide information and neither the content nor transmissions through this website
are intended to provide legal or other advice or to create an attorney-client relationship.
The Pre-Litigation Process Under California Civil Code sections 895 and 910, et seq.
All enumerated deadlines are taken directly from California Civil Code section 910, et seq. Please note that the parties are permitted to deviate from these deadlines upon mutual agreement. The nature and extent of defects will typically dictate whether more time is needed.
Please also see: Typical Questions and Answers on the Civil Code 895 and 910 Pre-Litigation Process
A written document, typically prepared by attorneys, that triggers the pre-litigation process. Generally speaking, the document describes the claims in “reasonable detail” while identifying the nature and location of claimed violations to the extent that they are known.
Issuance of the written Notice to Builder will pause the clock on legal time limits, preserving all claims that remain viable as of that date.
The Builder is required to provide a written acknowledgement of receipt.
The acknowledgement typically does not contain significant or meaningful information; however, it does confirm that the Builder has some understanding of the pre-litigation process and is engaged.
The Builder must complete its initial inspection of the property.
Given the need to retain and then coordinate schedules with their consultants, Builders can have difficulty meeting this initial 14-day window to perform an inspection. A Builder request to extend this deadline is not uncommon.
The Builder is required to request, in writing, a second inspection (which may include some invasive testing) if they are interested more investigation.
The larger the community – or the larger the claims – the more likely the Builder is to request a second inspection.
The Builder is required to complete the second inspection.
The Builder is required to provide the owner/HOA with the reasons for the second inspection before it moves forward.
The Builder may provide the owner/HOA with a written offer to repair violations of the residential construction standards. As an alternative, the Builder an offer the owner/HOA cash in lieu of a repair. Under either scenario, in addition to addressing violations of the residential construction standards the Builder is required to compensate the owner/HOA for (1) the cost of repairing any damages caused by the repair, (2) the cost of repairing and rectifying any damages resulting from the failure of the home to meet the standards, (3) the cost of removing and replacing any improper repair by the builder, (4) relocation and storage expenses, (5) lost business income if the home was used as a principal place of a business licensed to be operated from the home, (6) reasonable investigative costs for each established violation, and (7) any other cost or fee to which the owner/HOA is legally entitled.
If the Builder elects to address some but not all of the claimed violations of residential construction standards, the Builder must provide the owner/HOA with a document outlining the reasons why it is not addressing the entirety of the claims.
Importantly, the Builder is not entitled to a release in exchange for an offer to perform repairs. However, if the Builder offers cash instead of repairs, then the Builder is entitled to seek a “reasonable” release.
The owner/HOA can authorize the builder to proceed with proposed repairs.
If the owner/HOA is inclined to accept repairs instead of cash but is unhappy or unsure about the Builder's choice for reconstruction contractor, the owner/HOA can request details of up to 3 alternative contractors that can undertake the repair.
The Builder must offer the owner/HOA the option of participating in a mediation to try to address any disputes that may exist on the Builder's proposed scope of a repair.
Where desired, the mediation will occur after the Builder provides its offer but before any contemplated repair work starts.
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