ARIZONA
HOUSE OF REPRESENTATIVES
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SB 1210: S/E purchaser dwelling actions; attorney fees |
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PRIME SPONSOR: Senator Burges, LD 22 BILL STATUS: Caucus & COW
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Abstract
Relating to the awarding of attorney fees
in dwelling actions.
Provisions
1. States that each party bears its own attorney fees in a contested dwelling action based on an implied warranty arising out to contract or construction.
a. Includes an implied warranty of habitability, fitness or workmanship.
b. Does not alter, prohibit or restrict contracts (current or future) that provide for attorney fee recovery. (Sec 1)
2. Contains a retroactivity clause, making the changes effective on June 1, 2018. (Sec 2)
3. Contains a severability clause. (Sec 3)
Current Law
A.R.S. Title 12, Ch. 8, Article 14 addresses purchaser dwelling actions. A.R.S. § 12-1361 defines a dwelling action as any action involving a construction defect brought by a purchaser against a seller, relating to the design, construction, condition or sale of the dwelling. This section also defines construction defect, dwelling, purchaser and seller.
A.R.S. §§ 12-1362 and 12-1363 outline notice and right to repair requirements that must be followed prior to initiating a dwelling action. If the seller doesn't respond to the notice from the purchaser within 60 days, the purchaser can file a dwelling action. After the conclusion of the repairs or replacements, the purchaser may file a dwelling action for inadequate repair or replacement. If the purchaser fails to follow the outlined process, the dwelling action must be dismissed.
Laws 2002, Ch. 281, § 1 established that in any contested dwelling action, the court shall award the successful party reasonable attorney fees, expert witness fees and taxable costs. The statute outlined a mechanism for determining the successful party and included a clause stating that it did not impact present or future contracts or statutes providing for attorney fees. This section was repealed by Laws 2015, Ch 60. Laws 2015, Ch. 60 became effective on July 3, 2015.
A.R.S. § 12-341.01 provides that in any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees.
A.R.S. § 12-552 provides an 8-year statute of repose for any action based in a contract against a person who develops, develops and sells or provides specific services regarding an improvement to real property. This includes any action based on implied warranty arising out of the contract or the construction, including implied warranties of habitability, fitness or workmanship.
Additional Information
In 2017, the Arizona Supreme Court issued an opinion in Sirrah Enterprises LLC v Wayne Wunderlich addressing attorney fees in contested dwelling actions. The Supreme Court held that:
"The law implies a warranty of workmanship and habitability into every residential construction contract... Because the warranty is imputed into the construction contract, it is a term of the contract. Any claim for breach of that term arises from the contract. The successful party therefore qualifies for fees under a controlling contractual fee provision or, barring that, § 12-341.01."
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Fifty-third Legislature SB 1210
Second Regular Session Version 2: Caucus & COW
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