Eric Hartnett, of the Law Offices of Peter N. Brewer, provides some insight into a recent appellate decision regarding contractual pre-litigation procedures in homes subject to California’s SB800 provisions.
In a recently-decided case (Anders v. Superior Court), a California Court of Appeal dealt specifically with the pre-litigation process and a seller-homebuilder’s ability to avoid the process under California Civil Code §914. §914 permits the homebuilder-seller to draft its own alternative pre-litigation procedure and include the alternative in the homebuilder-seller’s sales contracts with buyer.
In Anders, the homebuilder-seller’s contract with buyers required that an alternative pre-litigation procedure be utilized, rather than the pre-litigation process set forth in SB800. The trial court found the alternative procedure unenforceable, but insisted that the buyers still comply with SB800. The Appellate Court disagreed.
The Anders Court ruled that if the alternative pre-litigation procedures are deemed unenforceable, the homeowner can immediately file a lawsuit against the homebuilder-seller. The Court essentially held that a homebuilder-seller forfeits its right to repair the construction defects under SB800 if its alternative pre-litigation procedures are deemed unenforceable.