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S. 41
STATUS INFORMATION
General Bill
Sponsors: Senators Richardson and Leatherman
Document Path: l:\s-res\shr\008righ.mrh.doc
Companion/Similar bill(s): 807, 3976
Introduced in the Senate on January 11, 2005
Currently residing in the Senate Committee on Judiciary
Summary: Notice and Opportunity to Cure Construction Dwelling Defects Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/8/2004 Senate Prefiled 12/8/2004 Senate Referred to Committee on Judiciary 1/11/2005 Senate Introduced and read first time SJ-100 1/11/2005 Senate Referred to Committee on Judiciary SJ-100
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND CHAPTER 11, TITLE 40 OF THE 1976 CODE BY ADDING ARTICLE 3, TO PROVIDE FOR THE SOUTH CAROLINA NOTICE AND OPPORTUNITY TO CURE NON-RESIDENTIAL DEFECTS ACT, TO PROVIDE THAT BEFORE AN ACTION BASED ON A CONSTRUCTION DEFECT MAY PROCEED AGAINST A CONTRACTOR, OR DESIGN PROFESSIONAL, THE CLAIMANT MUST SERVE NOTICE AND ALLOW FOR THE OPPORTUNITY TO CURE THE DEFECT, AND TO ESTABLISH PROCEDURES AND TIME LIMITS FOR FILING AND RESPONDING TO THE CLAIM; AND TO AMEND SECTIONS OF THE SOUTH CAROLINA NOTICE AND OPPORTUNITY TO CURE CONSTRUCTION DWELLING DEFECTS ACT, TO ESTABLISH TIME LIMITS FOR THE CONTRACTOR TO RESPOND TO THE CLAIM AND WHEN FAILURE TO RESPOND TO THE CLAIM IS CONSIDERED A DENIAL.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 11, Title 40 of the 1976 Code is amended by adding:
Section 40-11-500. This article may be cited as the 'South Carolina Notice and Opportunity to Cure Non-Residential Construction Defects Act'.
Section 40-11-510. As used in this article:
(1) 'Action' means a civil lawsuit or action or arbitration proceeding for damages or indemnity asserting a claim for injury or loss to non-residential property caused by an alleged defect arising out of or related to the design, construction, condition, or sale of the non-residential property, or a remodel of a non-residential property.
(2) 'Claimant' means a non-residential property owner, including a subsequent purchaser, who asserts a claim against a contractor, subcontractor, supplier, or design professional concerning a defect in the design, construction, condition, or sale of a non-residential property or in the remodel of a non-residential property.
(3) 'Construction defect' means a deficiency in or a deficiency arising out of the design, specifications, surveying, planning, supervision, or construction of non-residential improvements that results from any of the following:
(a) defective material, products, or components used in the construction of non-residential improvements;
(b) failure to substantially comply with applicable building codes in effect at the time of construction of non-residential improvements;
(c) failure of the design of non-residential improvements to meet the applicable professional standards of care and applicable building codes at the time of governmental approval of the design of non-residential improvements;
(d) failure to construct non-residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction; or
(e) failure to comply with applicable building codes. Substantial compliance with the applicable building codes in effect at the time of construction conclusively establishes construction in accordance with accepted industry trade standards with respect to all matters specified in those codes.
(4) 'Contractor' means a person licensed or registered pursuant to the provisions of Chapter 11, Title 40 who is engaged in the business of designing, developing, or constructing non-residential properties.
(5) 'Design professional' means a person licensed or registered pursuant to the provisions of Title 40 as an architect, landscape architect, engineer, or surveyor.
(6) 'Non-residential Property' means any property, building, structure, or improvement to real property that is not a dwelling as defined in Section 40-59-820.
(7) 'Serve' or 'service' means personal service or delivery by certified mail to the last known address of the addressee.
(8) 'Subcontractor' means a contractor who performs work on behalf of another contractor in the construction of a non-residential property who is licensed or registered pursuant to the provisions of Title 40.
(9) 'Supplier' means a person who provides materials, equipment, or other supplies for the construction of a non-residential property.
Section 40-11-520. If the claimant files an action in court before first complying with the requirements of this article, on motion of a party to the action, the court shall stay the action until the claimant has complied with the requirements of this article.
Section 40-11-530. (A) In an action brought against a contractor, subcontractor, supplier, or design professional arising out of the construction of a non-residential property, the claimant must, no later than ninety days before filing the action, serve a written notice of claim on the contractor, subcontractor, supplier, or design professional. Upon service of the notice, the statute of limitations is tolled until the claim is denied or until completion of repairs by the contractor, subcontractor, supplier, or design professional. The notice of claim must contain the following:
(1) a statement that the claimant asserts a construction defect;
(2) a description of the claim or claims in reasonable detail sufficient to determine the general nature of the construction defect; and
(3) a description of the results of the defect, if known.
(B) The contractor, subcontractor, supplier, or design professional must advise the claimant, within fifteen days of receipt of the claim, if the construction defect is not sufficiently stated and shall request clarification.
Section 40-11-540. (A) The contractor, subcontractor, supplier, or design professional has sixty days from service of the initial notice of claim to inspect, offer to remedy, offer to settle with the claimant, or deny the claim regarding the defects. Within sixty days from the service of the initial notice of claim, the contractor, subcontractor, supplier, or design professional shall serve written notice on the claimant of the contractor's, subcontractor's, supplier's, or design professional's election pursuant to this section. The claimant shall allow inspection of the construction defect at an agreeable time, during normal business hours, to any party, if requested pursuant to this section. The claimant shall give the contractor, subcontractor, supplier, or design professional reasonable access to the property for inspection and if repairs have been agreed to by the parties, reasonable access to effect repairs. Failure of the contractor to respond within sixty days is considered a denial of the claim.
(B) The claimant shall serve a response to the contractor's, subcontractor's, supplier's, or design professional's offer within ten days of receipt of the offer.
(C) If the parties cannot agree to settle the dispute pursuant to this article within ninety days after service of the initial notice of claim on the contractor, subcontractor, supplier, or design professional, the claim is considered denied and the claimant may proceed with a civil action or other remedy provided by contract or by law.
(D) An offer of settlement, repair, or remedy pursuant to this section, is not admissible in an action.
Section 40-11-550. (A) This article does not apply to actions arising out of claims for personal injury, death, or both.
(B) South Carolina Court Administration is directed to develop a designation on the civil action cover sheet which indicates whether a stay has been granted for a civil action filed pursuant to this article."
SECTION 2. A. Section 40-59-820 of the 1976 Code is amended to read:
"Section 40-59-820. As used in this article:
(1) 'Action' means any civil lawsuit or action or arbitration proceeding for damages or indemnity asserting a claim for injury or loss to a dwelling or personal property caused by an alleged defect arising out of or related to the design, construction, condition, or sale of the dwelling or a remodel of a dwelling.
(2) 'Claimant' means a homeowner, including a subsequent purchaser, who asserts a claim against a contractor, subcontractor, supplier, or design professional concerning a defect in the design, construction, condition, or sale of a dwelling or in the remodel of a dwelling.
(3) 'Construction defect' means a deficiency in or a deficiency arising out of the design, specifications, surveying, planning, supervision, or observation of construction or construction of residential improvements that results from any of the following:
(a) defective material, products, or components used in the construction of residential improvements;
(b) violation of the applicable codes in effect at the time of construction of residential improvements;
(c) failure of the design of residential improvements to meet the applicable professional standards of care at the time of governmental approval of the design of residential improvements; or
(d) failure to construct residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction.; or
(e) failure to comply with applicable building codes. Substantial Compliance compliance with the applicable codes in effect at the time of construction conclusively establishes construction in accordance with accepted industry trade standards for good and workmanlike construction, with respect to all matters specified in those codes.
(4) 'Contractor' means a person licensed or registered pursuant to the provisions of Chapter 11, Title 40, who is engaged in the business of designing, developing, or constructing dwellings.
(5) 'Dwelling' means a single-family house or duplex or a multifamily unit not to exceed sixteen units and not to exceed three stories in height, and which is intended for residential use. A dwelling includes the systems and other components and improvements that are part of a single or multifamily unit at the time of construction.
(5)(6) 'Serve' or 'service' means personal service or delivery by certified mail to the last known address of the addressee.
(7) 'Subcontractor' means an entity who contracts to perform construction services for a contractor or another subcontractor."
B. Section 40-59-830 of the 1976 Code is amended to read:
"Section 40-59-830. If the claimant files an action in court before first complying with the requirements of this article, on motion of a party to the action, the court shall stay the action until the claimant has complied with the requirements of this article. No claimant may file a construction defect action in court before first complying with the requirements of this article."
C. Section 40-59-840 of the 1976 Code is amended to read:
"Section 40-59-840. (A) In an action brought against a contractor or subcontractor arising out of the construction of a dwelling, the claimant must serve, no later than ninety days before filing the action, serve a written notice of claim on the contractor or subcontractor. Upon service of the notice, the statute of limitations is tolled until the claim is denied or until completion of repairs by the contractor, subcontractor, or their agents. The notice of claim must contain the following:
(1) a statement that the claimant asserts a construction defect;
(2) a description of the claim or claims in reasonable detail sufficient to determine the general nature of the construction defect; and
(3) a description of any the results of the defect, if known.
(B) The contractor or subcontractor shall advise the claimant, within fifteen days of receipt of the claim, if the construction defect is not sufficiently stated and shall request clarification."
D. Section 40-59-850 of the 1976 Code is amended to read:
"Section 40-59-850. (A) The contractor or subcontractor has thirty days from service of the initial notice of claim to inspect, offer to remedy, offer to settle with the claimant, or deny the claim regarding the defects. The claimant shall receive written notice of the contractor's or subcontractor's, as applicable, election under this section Within thirty days from the service of the initial notice of claim, the contractor or subcontractor shall serve written notice on the claimant of the contractor's or subcontractor's election pursuant to this section. The claimant shall allow inspection of the construction defect at an agreeable time to both parties, if requested pursuant to this section. The claimant shall give the contractor and any subcontractors reasonable access to the dwelling for inspection and if repairs have been agreed to by the parties, reasonable access to affect effect repairs. Failure to respond within thirty days is deemed considered a denial of the claim.
(B) The claimant shall serve a response to the contractor's or subcontractor's offer, if any, within ten days of receipt of the offer.
(C) If the parties cannot agree to settle the dispute pursuant to this article, within ninety days after service of the initial notice of claim on the contractor or subcontractor, the claim is considered denied and the claimant may proceed with a civil action or other remedy provided by contract or by law.
(D) Any offers of settlement, repair, or remedy pursuant to this section, are not admissible in an action."
SECTION 3. This act takes effect July 1, 2005 and applies to all actions arising or accruing on or after the effective date.
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