by Risemberg LawSB 800 – A SUMMARY OF CALIFORNIA’S “FIX-IT” STATUTE
In 2002, the California Legislature enacted SB 800 (California Civil Code section 895 et seq.)
The so-called “Right to Repair” bill, sets forth repair and mediation procedures for residential construction defect claims. But these protections are not automatic. For the protections to be in place the builder must provide notice of those procedures at the time of sale, both in the original sales documents (initialed and acknowledged by the purchaser and sales representative) and in documents recorded against the property, such as CC&R’s. The notice must advise of the SB 800 pre-litigation procedures along with a notice that those procedures impact the legal rights of the homeowner. Failure to provide the required notice takes away the builder’s right to compel compliance with SB 800 procedures.
Written Notice of Claim Required
The pre-litigation procedures created by SB 800 begin with the homeowner providing written notice to the builder which describes, in reasonable detail, any alleged defects. The builder must acknowledge receipt of the homeowner’s claim within 14 days and it may then conduct an inspection within 14 more days. A second inspection by the builder may be conducted within an additional 40 days. After completion of these inspections, the builder has 30 days in which it may offer to conduct repairs or to make a cash payment in lieu of any repairs.
After receiving the builder’s offer to repair or to make payment, the homeowner then has 30 days to accept the offer, request the names of three additional contractors to conduct the repair, or to request mediation. If mediation is requested, it must occur within 15 days and, unless the homeowner agrees to pay for half of the cost of the mediation, the mediator is chosen and paid for by the builder. If the homeowner chooses to pay for half of the mediation costs, then the mediator is chosen jointly. This mediation is limited to four hours unless extended by the parties. At the end of the mediation, the homeowner and builder either agree to a resolution or the homeowner must allow the repair to be performed. The repairs must be completed as soon as is reasonably possible with every effort made to complete the repair within 120 days. Alternatively, the builder may offer a cash payment in lieu of any repair and it may obtain a reasonable release in exchange for that payment.
After the repair has been completed under SB 800, and if no prior mediation has taken place, then the homeowner must request mediation with the builder if they wish to bring further action. The statute of limitations to bring such further action is generally extended during the repair and mediation process until 100 days after they are completed. If a homeowner ultimately sues under SB 800, then damages are limited to the reasonable value of repairing any SB 800 violation, any damages caused by the original repairs, the cost of removing and replacing any improper repairs completed by the builder, reasonable relocation and storage expense, lost business income if the residence is used as a principal place of business licensed to be operated from the residence, reasonable investigative cost, and all other costs or fees recoverable by contract or statute.
Statutory Defenses Available
If a builder is sued under SB 800, there are a number of defenses available to it pursuant to California Civil Code section 945.5. These defenses include (a) unforeseen acts of nature such as weather and earthquakes and manmade events such as war, terrorism, or vandalism; (b) failure by the homeowner to reasonably minimize or prevent damages including failure to give timely notice of the alleged defect; (c) failure to follow builder’s or manufacturer’s recommendations or commonly accepted maintenance obligations which were provided at the time of sale; (d) ordinary wear and tear, misuse, abuse or neglect; (e) statute of limitations; (f) defects for which the builder obtained a valid release; (g) successful repairs which corrected the defect; and (h) all other available affirmative defenses.
Strict Compliance Required
SB 800 requires strict compliance to both notice and time requirements. Any failure allows the homeowner to immediately bypass the SB 800 procedure and file his or her lawsuit. Because the time limits are so short and the consequences of a mistake so devastating, builders who wish to avail themselves of the pre-litigation protections of SB 800 may want to consider consulting a construction attorney immediately upon receipt of notice of an SB 800 claim.
by Risemberg LawSpoilation of Evidence – Fiduciary Duties of HOA Boards upon Discovery of Construction Defects.
If you are facing a criminal charge, no matter how minor, you should talk to a defense attorney to fully understand your case. A consultation with an experienced attorney will help you to understand the charges placed against you, the defenses available, what if any plea bargains may be offered to you, and what you should do if you are convicted. We offer free consultations – just contact us. If you are facing a serious charge, however, it is highly recommended that you have a skilled defense attorney represent you in court, and to not attempt self-representation based on a consultation.
by Risemberg LawSB4 – California’s New Law re Affordable Housing
Affordable Housing on Faith and Higher Education Lands Act of 2023
On October 11, 2023, Governor Gavin Newsom signed Senate Bill (“SB”) 4 into law. Effective January 1,2024. SB 4 adds Section 65913.16 to the Government Code, which limits the ability of cities and counties to regulate the development of new housing on property owned by religious institutions and colleges. An SB 4 project is permitted as a “use by right” and exempt from the California Environmental Quality Act if it meets SB 4’s criteria for:
• Affordability requirements
• Locational requirements
• Development requirements
• Labor requirements.
Under SB 4, 100% affordable housing projects located on “religious institutions” or an “independent institution of higher education” are a “use by right,” and are eligible for density bonuses, incentives, concessions, waivers or reductions of development standards, except that SB 4 projects in non-residential zones cannot use the density bonus to increase the height of a project. All of the housing units in an SB 4 project must be affordable for lower income households, except for:
• 20% of the total housing units may be for moderate-income households
• 5% of the units may be reserved for staff members of the independent institution of higher education
• the manager’s unit or units.
The land must have been owned by the religious institution or independent institution of higher education before January 1, 2024 for SB 4 to apply. Housing units for rent must be deed-restricted as affordable for 55 years and housing units for sale must be deed-restricted as affordable for 45 years or the first purchaser must participate in an equity sharing agreement.
SB 4 projects cannot occur on a site that would require the demolition of housing that is deed-restricted affordable, subject to rent control, or has been occupied by tenants within the past 10 years or that was used for housing but was demolished within the past 10 years.
There are significant restrictions on what parcels of land can be used for development under SB 4, and developers are cautioned to consult with appropriate land-use planners in determining the appropriateness of a particular location.