According to La. R.S. 9:3145, an owner of property must notify their builder in writing of defects in their new construction home, this writing must be sent via certified mail, and the owner must give the builder an opportunity to fix the defects before undertaking the work themselves.
This week, we will discuss below a Louisiana 1st Circuit Court of Appeals case dealing with this “Notice” provision outlined in La. R.S. 9:3145.
The below case was not designated for publication, so it should not be cited in a Court of Law. But for our purposes, the below case helps us learn how a Louisiana Court views La. R.S. 9:3145.
Richard v. Alleman, 2011-1770; La. App. 1 Cir (5/2/12)
Plaintiffs filed suit on May 19, 2003, seeking to recover damages for breach of contract and the warranties contained in the Louisiana New Home Warranty Act (LNHWA). Plaintiffs alleged in early 2002, plaintiffs contacted defendant builder about building their new home; plaintiffs entered into a contract for defendant builder to construct the home pursuant to a turn-key package; and there were problems from the beginning of the construction due to defendant builder’s use of substandard building materials or substandard methods in construction. Plaintiffs alleged they made verbal demands on the defendant builder to remedy the problems, followed by demands sent via certified mail, all of which went unanswered.
Defendant builder acknowledged receipt of the demands by plaintiffs, but defendant builder alleged plaintiffs failed to comply with La. R.S. 9:3145. According to defendant builder:
- Plaintiffs failed to list in their letter all problems to be remedied by defendant builder; and
- When defendant builder made efforts to remedy the problems listed in plaintiff’s letter, plaintiffs ordered defendant builder off their property.
Since plaintiffs did not list all of the defects in their demand letter and since defendant builder was not given an opportunity to fix the problems, defendant builder contended he should not be liable.
A bench trial was held. During trial there was a factual dispute concerning whether defendant builder was given an opportunity to remedy the problems alleged by plaintiffs. Defendant builder alleged he came to the home to fix the problems, but plaintiffs ordered him off the property. Plaintiffs denied this allegation and testified builder came to the home, but advised plaintiffs he would not fix the problems.
The Judge weighed the credibility of the parties and found the plaintiffs testimony more credible. Accordingly, the Trial Court made a factual determination that defendant builder came to the property, but refused to fix the problems.
Defendant appealed. According to La. R.S. 9:3145, the buyer must give the builder written notice, by registered or certified mail, within one year of knowledge of the defect, advising the builder of all defects and giving the builder an opportunity to repair the defects.
The appellate court held that the trial court made a factual determination that the plaintiffs had complied with the notice provisions that would not be disturbed on appeal. The appellate court accepted plaintiffs testimony that plaintiffs made verbal demands on the defendant to remedy the issues, followed by demands sent via certified mail, all of which went unanswered.
Additionally, the appellate court found that plaintiffs’ failure to list all of the defects in their letter was not a bar to recovery. According to the Court, defendant builder failed to perform any of the requested repairs, whether outlined in the letter or not. Since the defendant builder failed to make any repairs, it is assumed that the defendant builder would not have repaired any additional defects. The trial court’s ruling was affirmed.
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H.L. “Rye” Tuten, III, is a Title Attorney/Real Estate Closing 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.
The information contained herein is simply for informational purposes only and not intended to provide legal advice or create an attorney-client relationship.