AMENDED
ARIZONA STATE SENATE
RESEARCH STAFF
|
ZACHARY DEAN |
|
ASSISTANT RESEARCH ANALYST |
|
JEFFREY ONG |
|
LEGISLATIVE RESEARCH ANALYST GOVERNMENT COMMITTEE Telephone: (602) 926 -3171 |
DATE: February 15, 2018
SUBJECT: Strike everything amendment to S.B. 1259, relating to dwelling action; fees; costs
______________________________________________________________________________
Purpose
Requires a court, in any contested dwelling action, to award expert witness fees and other costs to a successful party.
Background
Laws 2015, Chapter 60 established new guidelines for the handling and filing of a dwelling action. Primarily, it provided a seller with the right to repair construction defects alleged by a purchaser prior to the filing of a dwelling action. Current statute now requires a purchaser to give written notice through certified mail to a seller specifying in reasonable detail the basis of the dwelling action. Within 60 days of receipt of this notice, a seller is required to send a response to the purchaser which may include any of the following: 1) a notice of intent to repair or replace any alleged construction defects; 2) a notice of intent to have alleged construction defects repaired or replaced at the seller's expense; or 3) a notice of intent to provide monetary compensation to the purchaser. A purchaser is allowed to reject any monetary offer or other consideration, but not an offer to repair or replace the defect. If a monetary offer is rejected, or the seller does not provide a response within the specified timeframe, a purchaser may bring a dwelling action against a seller (A.R.S. § 12-1363).
Laws 2015, Chapter 60 also repealed statute requiring the award of attorney fees, witness fees and taxable costs to the successful party in a dwelling action.
Current statute allows reasonable attorney fees to be awarded to the successful party in any contested action arising out of a contract. Statute specifies that an offeror is deemed the successful party if the judgement finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle any contested action arising out of a contract (A.R.S. § 12-341.01).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Requires a court, in any contested dwelling action, to award a successful party expert witness fees and costs.
2. Specifies that a purchaser who receives a final judgement more favorable than any combination of consideration, repairs or replacements is deemed the successful party.
3. Specifies that if a purchaser receives a final judgement less favorable than any combination of consideration, repairs or replacements, then the seller is deemed the successful party.
4. Specifies that a purchaser deemed the successful party is deemed as such from the time that a notice of alleged construction defects is issued.
5. Specifies that a seller deemed the successful party is deemed as such from the time that a response to a notice of alleged construction defects is provided.
6. Prohibits a seller from being reimbursed for investigation or performed repair.
7. States that these requirements do not alter, prohibit, or restrict present or future contracts or statutes that may provide for attorney fees.
8. Becomes effective on the general effective date.
Amendments Adopted by Committee
· Removes the requirement that reasonable attorney fees be awarded to a successful party in a contested dwelling action.
Senate Action
GOV 2/14/18 DPA/SE 4-3-0