My client recently bought a new construction home and found some issues that we think might be covered by the New Home Warranty Act. Should my client just hire a contractor to fix the issues and send the bill to the builder?
No, not yet.
According to La. R.S. 9:3145, before undertaking any repair himself/herself or instituting any action for breach of warranty, the owner shall give
the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to fix the problem.
Additionally, if an owner fails to provide the requisite notice and opportunity to fix outlined in La. R.S. 9:3145, this may bar an owner from bringing a future claim related to the issue/defect.
According to La. R.S. 9:3144(B)(4)(c), the following shall be excluded from the Louisiana New Home Warranties:
“Any damage to the extent it is caused or made worse by…failure by the owner to give written notice by registered or certified mail to the builder of any defect within the time set forth in R.S. 9:3145.”
Builders have a vested interest in upholding their reputation and most builders with whom we work in Lafayette make great efforts to timely respond to owner complaints in an effort to keep owners satisfied.
Additionally, builders also know that according to La. R.S. 9:3149(A) if a builder fails to remedy defects as required by the warranties provided in the Louisiana New Home Warranty Act, any affected owner shall have a cause of action against the builder for actual damages, including attorney fees and court costs, arising out of the violation.
Every now and again, however, a homeowner might run across a builder who either is too busy to timely fix the problem or simply refuses to fix the problem. What should a homeowner do in this situation?
If a builder fails to timely remedy the issue/defect after the home owner provided the requisite notice, then according to La. R.S. 9:3144(B)(5), the homeowner has an affirmative duty to make efforts to fix the issue/defect in an effort to mitigate the homeowner’s damages.
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H.L. “Rye” Tuten, III, is a Title Attorney and Owner of Tuten Title & Escrow, LLC. Formerly assigned by RICE Insurance to defend real estate agents throughout Acadiana, much of his more than nine years’ litigation experience is with real estate concerns.