After all the time and money you spent into building or remodeling your lake home, the last thing anyone wants to hear is that something wasn’t done correctly. You are well within your legal rights to take the ones responsible to court and attempt to get it fixed that way. But how successful would be?
According to a study conducted by NERA, an economic consulting firm based out of White Plains, NY, litigation rarely secures a timely resolution to complaints or adequate compensation if the home owners need to make the repairs themselves. The time and money spent in court fees and lawyer expenses alone is enough to overshadow the compensation awarded by the court and that’s if the decision comes in the owners favor. The Right to Cure Law, also known as the Right to Repair Law was enacted by the Wisconsin government in October 2006 as a means to give home owners and contractors an opportunity to correct the building error before bringing the matter to the courts.
“The Right to Cure law was meant to be a precursor to any formal legal action,” says Joseph Thomas, Chief Legal Council to the Wisconsin Department of Commerce.
At its core, the Right to Cure law is a formal, guided dialogue between the owner and the contractor designed to identify the alleged defect and arrive at a solution before it can go to the courts. This guided dialogue follows a five phase process that follows a strict time table and requires both parties to formally document their communication with each other. If any of these phases are not completed, it is grounds for immediate dismissal if a case is brought to court. The five phases are as follows.
1) Notice of Claim: At least 3 months (90 days) before taking legal action against the contractor or material supplier (ex. doors or windows), the claimant (the owner) must deliver written notice of the alleged defect to the contractor.
2) Contractor’s Response: Upon receiving the complaint, the contractor has 15 working days to provide claimant with one of the following: 1) An offer to repair or remedy the defect; 2) Offer to settle the claim with a monetary payment; 3) A combination of 1 and 2; 4) A statement that the contractor rejects the claim and their reasons for doing so; 5) A proposal to inspect the alleged defect or perform any necessary testing.
3) Claimant’s response: If the contractor rejects the claim, legal action may be taken against the contractor. The claimant has 15 working days if he or she rejects or accepts any offer to notify the contractor in writing. If a window or door company is involved, that company must be given written notice as well to ensure the supplier got the notice from the contractor.
4) Contractor’s Supplemental Response: If the claimant rejects the offer, the contractor has five working days to provide a written supplemental offer or a notice that no additional offers will be made.
5) Claimant’s Response: If the contractor will make no additional offers, the claimant is clear to begin legal action against the contractor. If the claimant has received a supplemental offer, he or she has 15 working days to respond.
Now, Wisconsin, contractors are required to give their customers a pamphlet developed by the Department of Commerce outlining the details of this process.
A Few Wrinkles
Like any law, there are a few exceptions and expectations that can change depending on the situation.
If testing is required, the claimant is responsible for giving the contractor reasonable access to the property for inspection, documentation of the alleged defect, and perform any testing needed to determine the extent and cause of the defect. If any destructive testing is needed (i.e breaking down a wall) the contractor is required to give the claimant 5 days notice before the testing begins. Any damage caused by the contractor will be restored by the contractor at his own expense and will be completed in a timely manner. After testing is completed, the contractor has 10 days to notify the claimant in writing of their intended course of action on their claim (i.e. repair, reimburse, reject.)
Special circumstances apply when the claim is made against a door and window supplier. If the contractor wishes to make a claim against the door and window supplier, he or she must serve the supplier with the claimant’s documentation as well as their own, and must abide by the same protocol established by the Right to Repair law. The supplier has 15 business days to reply with an intention to repair the defect, offer a reimbursement or reject the claim.
In such a case, the contractor has 25 days, instead of the regular 15, to respond to the claimant’s initial notice. The contractor must forward the supplier’s response to the claimant when they serve their own response.
Some Things You Should Keep in Mind
If you ever should find yourself in the unfortunate position to have to make a claim, here are a few closing tips to keep in mind.
1) One should consider hiring a construction expert to help identify and evaluate construction defects. While in most cases problems can be spotted by the owner themselves, a trained eye would be able to identify problems and defects that might otherwise go unnoticed. Also these trained professionals would have access to documentation from the contractor that the owners wouldn’t have.
2) Take care to be thorough when inspecting the contractors work and document all the defects found on the initial inspection. Any defects found after the claim process has begun will have to regarded as new and will be treated as a separate claim. By making sure all the defects are found the first time, the owner can save themselves plenty of time and a headache to boot.
3) Use certified mail when sending the claim to the contractor. The language of the law doesn’t expressly say that this is necessary, but it’s best just to use the more formal mode of mail and err on the side of caution.
4) Emergency repairs often need to be dealt with immediately have no time to go through this process. However, there have been cases when owners have “jumped the gun” and fixed it themselves without giving the contractor a chance to cure it. Any claim made after this would be considered not viable and would be dismissed. Common sense should determine whether or not the repair needed is an emergency or can be dealt with under the auspice of Right to Repair.
Al Josef is the editor of LakeshoreDreams.com
