HB2141 - 541R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 12-1363, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1363. Notice and right to repair or replace; tolling of time limits; admissible evidence; definition

A. Before filing a dwelling action, the purchaser shall give written notice by certified mail, return receipt requested, to the seller specifying in reasonable detail the basis of the dwelling action.

B. After receipt of the notice described in subsection A of this section, the seller may inspect the dwelling to determine the nature and cause of the alleged construction defects and the nature and extent of any repairs or replacements necessary to remedy the alleged construction defects. The purchaser shall ensure that the dwelling is made available for inspection no later than ten days after the purchaser receives the seller's request for an inspection. The seller shall provide reasonable notice to the purchaser before conducting the inspection. The inspection shall be conducted at a reasonable time. The seller may use reasonable measures, including testing, to determine the nature and cause of the alleged construction defects and the nature and extent of any repairs or replacements necessary to remedy the alleged construction defects. If the seller conducts testing pursuant to this subsection, the seller shall restore the dwelling to its condition before the testing.

C. Within sixty days after receipt of the notice described in subsection A of this section, the seller shall send to the purchaser a good faith written response to the purchaser's notice by certified mail, return receipt requested. The following provisions apply to the seller's response:

1. The response may include any of the following:

1. (a) The seller's notice of intent to repair or replace any alleged construction defects, to have the alleged construction defects repaired or replaced at the seller's expense or to provide monetary compensation to the purchaser. The written notice of intent to repair or replace shall describe in reasonable detail all repairs or replacements that the seller intends to make or provide to the dwelling, the identity of the licensed contractor that will perform each repair or replacement and a reasonable estimate of the date by which the repairs or replacements will be made.

2. (b) The seller's offer to repair or replace any alleged construction defects at the seller's expense or to provide monetary compensation to the purchaser. The written offer to repair or replace shall describe in reasonable detail all repairs or replacements that the seller is offering to make or provide to the dwelling and a reasonable estimate of the date by which the repairs or replacements will be made. This subsection does not prohibit the seller from offering monetary compensation or other consideration instead of or in addition to a repair or replacement. The purchaser may accept or reject an offer of monetary compensation or other consideration, other than repair or replacement and, if rejected, may proceed with a dwelling action on completion of any repairs or replacements the seller intends to make or provide. The parties may negotiate for a release if an offer involving monetary compensation or other consideration is accepted.

2. In consideration of a unilateral right to perform repairs under paragraph 1, subdivision (a) of this subsection, regardless of contractual language to the contrary, the seller voluntarily assumes the risk of improper repairs, including liability for a purchaser's attorney fees, expert witness fees and taxable costs as set forth in section 12‑1364.

3. The seller's written response does not require a release of claims unless a release is specifically negotiated with an offer that involves monetary compensation or other consideration that is accepted.

D. If the seller does not provide a written response to the purchaser's notice within sixty days, the purchaser may file a dwelling action.

E. The purchaser shall respond within thirty days after receiving the seller's response. If the seller makes an offer pursuant to subsection C, paragraph 1, subdivision (b) of this section, the purchaser may either accept or reject the offer, in whole or in part and, if rejected, in whole or in part, may proceed with a dwelling action on the completion of any accepted repairs or replacements. If the response provided pursuant to subsection C, paragraph 1, subdivision (a) of this section includes a notice of intent to repair or replace the alleged construction defects, the purchaser shall allow the seller a reasonable opportunity to repair or replace the alleged construction defects or cause the alleged construction defects to be repaired or replaced. Any repairs or replacements that are performed as a result of a response provided under subsection C of this section shall be completed pursuant to the following:

1. The purchaser and the seller or the seller's construction professionals shall coordinate repairs or replacements within thirty days after the seller's notice of intent to repair or replace was sent purchaser responds pursuant to this subsection C of this section. If requested by the purchaser, repair or replacement of alleged construction defects undertaken by the seller shall be performed by a construction professional that is selected by the seller and consented to by the purchaser, whose consent shall not be unreasonably withheld, and that was not involved in the construction or design of the dwelling.

2. Repairs or replacements shall begin as agreed by the purchaser and the seller or the seller's construction professionals, with reasonable efforts to begin repairs or replacements within thirty-five days after the seller's notice of intent to repair or replace was sent purchaser responds pursuant to this subsection C of this section. If a permit is required to perform the repair or replacement, reasonable efforts shall be made to begin repairs or replacements within ten days after receipt of the permit or thirty‑five days after the seller's notice of intent to repair or replace was sent purchaser's response pursuant to this subsection C of this section, whichever is later.

3. All repairs or replacements shall be completed using reasonable care under the circumstances and within a commercially reasonable time frame considering the nature of the repair or replacement, any access issues or unforeseen events that are not caused by the seller or the seller's construction professionals.

4. The purchaser shall provide reasonable access for the repairs or replacements.

5. The seller is not entitled to a release or waiver solely in exchange for any repair or replacement made pursuant to this subsection, except that the purchaser and seller may negotiate a release or waiver in exchange for monetary compensation or other consideration.

6. At the conclusion of any repairs or replacements, the purchaser may commence a dwelling action or, if the contract for the sale of the dwelling or the community documents contain a commercially reasonable alternative dispute resolution procedure that complies with section 12‑1366, subsection C, may initiate the dispute resolution process including any claim for inadequate repair or replacement.

F. During the notice and repair or replacement process, and for thirty days after all offers have been rejected or substantial completion of the repair or replacement, the statute of limitations and statute of repose, including section 12‑552, applicable to the purchaser, including any construction professionals involved in the construction or design, are tolled as to the seller and the seller's construction professionals who were involved in the construction or design of the dwelling for all alleged construction defects described in reasonable detail in the written notice sent to the seller pursuant to subsection A of this section.

G. Except for negotiations or offers involving monetary compensation that are inadmissible in any dwelling action, both parties' conduct during the repair or replacement process prescribed in subsections B, C, D and E of this section may be introduced in any subsequent dwelling action. Any repair or replacement efforts undertaken by the seller are not considered settlement communications or offers of settlement and are admissible in evidence.

H. A purchaser may amend the notice provided pursuant to subsection A of this section to include alleged construction defects identified in good faith after submission of the original notice. The seller shall have a reasonable period of time to conduct an inspection, if requested, and thereafter the parties shall comply with the requirements of subsections B, C, D and E of this section for the additional alleged construction defects identified in reasonable detail in the notice.

I. Subject to Arizona rules of court, during the pendency of a dwelling action the purchaser may supplement the list of alleged construction defects to include additional alleged construction defects identified in good faith after filing of the original dwelling action. that have been identified in reasonable detail as required by this section. The court shall provide the seller a reasonable amount of time to inspect the dwelling to determine the nature and cause of the additional alleged construction defects, the nature and extent of any repairs or replacements necessary to remedy the additional alleged construction defects and, on request of the seller, sufficient time to repair or replace the additional alleged construction defects. The parties shall comply with the requirements of subsections B, C, D and E of this section for the additional alleged construction defects identified in reasonable detail in the notice. The supplemental list of alleged construction defects may be made by complying with subsection B of this section or provided in accordance with mandatory disclosure obligations as required by the court in a dwelling action. After receipt of a supplemental list of alleged construction defects, the court, if requested by the seller, shall provide the parties with a reasonable opportunity to comply with subsections C and E of this section only for the additional alleged construction defects.

J. The service of an amended notice identifying in reasonable detail the alleged construction defects or the disclosure of additional construction defects pursuant to court rules during the pendency of a dwelling action or the process that is prescribed by this article shall relate back to the original notice of alleged construction defects for the purpose of tolling applicable statutes of limitations and statutes of repose, including section 12‑552.

K. By written agreement of the seller and purchaser, the time periods provided in this section may be extended.

L. For the sale of a dwelling that occurs within the statutory period set forth in section 12‑552, the escrow agent, as defined in section 6‑801, shall provide notice to the purchaser of the provisions of this section and sections 12‑1361 and 12‑1362. Nothing in This subsection creates does not create a fiduciary duty or provides provide any person or entity with a private right or cause of action or administrative action.

M. If the seller does not comply with the requirements of this section and the failure is not due to any fault of caused exclusively by the purchaser or as a result of an unforeseen condition, including an unforeseen weather condition or government delay, the purchaser may commence a dwelling action.

N. If the purchaser fails to comply with the requirements of this section before bringing a dwelling action, the dwelling action shall be dismissed. If the dwelling action is dismissed after the statute of limitations or statute of repose, including section 12-552, applicable to the purchaser, any subsequent dwelling action brought by the purchaser is time barred as to the seller and the seller's construction professionals involved in the construction or design of the dwelling stayed pending compliance with the requirements of this section.

O. The seller's completion of the repair or replacement constitutes substantial completion of the repair or replacement for the purposes of section 12‑552.

O. P. For the purposes of this section, "reasonable detail" includes a detailed and itemized list that describes each alleged construction defect, the location that each alleged construction defect has been observed or is believed to exist by the purchaser and, with respect to a seller's offer, the method of the seller's repair for each alleged construction defect. in each dwelling that is the subject of the notice and If reasonably known, the purchaser should identify the impairment to the dwelling that has occurred as a result of each of the alleged construction defects or is reasonably likely to occur if the alleged construction defects are not repaired or replaced. END_STATUTE

Sec. 2. Title 12, chapter 8, article 14, Arizona Revised Statutes, is amended by adding section 12-1364, to read:

START_STATUTE12-1364. Attorney fees; expert witness fees; taxable costs; seller's reimbursement costs prohibited

A. In a contested dwelling action that is filed either after the seller did not provide a written response to the purchaser's notice pursuant to section 12‑1363, subsection C or after the seller responded pursuant to section 12‑1263, subsection C, paragraph 1, subdivision (b) the court may award the successful party reasonable attorney fees, reasonable expert witness fees and taxable costs. If the judgment obtained is more favorable to the purchaser than the seller's offer, if any, the purchaser is deemed to be the successful party from the date that the purchaser provided a notice pursuant to section 12‑1363, subsection A. If the judgment obtained is less favorable to the purchaser than the seller's offer the seller is deemed to be the successful party from the date that the seller provided a response pursuant to section 12‑1363, subsection C, paragraph 1, subdivision (b). This section does not alter, prohibit or restrict present or future contracts or statutes that may provide for attorney fees.

B. In a contested dwelling action that is filed by a purchaser after a seller completed any repairs offered pursuant to section 12‑1363, subsection C, paragraph 1, subdivision (a), the court shall award the successful purchaser reasonable attorney fees, reasonable expert witness fees and taxable costs. The purchaser is deemed to be the successful party if the final judgment obtained is more favorable to the purchaser than any combination of consideration provided by, or repairs or replacements actually performed by, the seller pursuant to this article.

C. The seller may not be reimbursed for the cost of an investigation or repair that the seller performed pursuant to this article. END_STATUTE

Sec. 3. Section 12-1366, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1366. Applicability; claims and actions

A. This article does not apply:

1. To personal injury claims.

2. To death claims.

3. To claims for damage to property other than a dwelling.

4. To common law fraud claims.

5. To proceedings brought pursuant to title 32, chapter 10.

6. To claims solely seeking recovery of monies expended for repairs to alleged defects that have been repaired by the purchaser.

7. To claims for alleged construction defects if the contract for the sale of the dwelling or an association's community documents contain commercially reasonable alternative dispute resolution procedures.

8. To claims for alleged construction defects if the seller has previously refused to repair the alleged defect or has already performed a repair on the alleged defect and the defect or the damage caused by the defect has returned.

B. A dwelling action brought by an association is also subject to title 33, chapter 18.

C. After the repair or replacement process has been completed as prescribed by section 12‑1363, this article does not affect either party's ability to enforce any commercially reasonable alternative dispute resolution procedures contained in the contract for the sale of the dwelling or an association's community documents. The seller's election to enforce any commercially reasonable alternative dispute resolution procedures contained in the contract for the sale of the dwelling or an association's community documents does not negate, abridge or otherwise reduce the seller's right to repair or replace any alleged construction defects pursuant to section 12‑1363. If the contract for the sale of a dwelling contains the procedures, the procedures shall conspicuously appear in the contract in bold and capital letters and a disclosure statement in at least twelve‑point font, bold and capital letters shall appear on the face of the contract and shall describe the location of the alternative dispute resolution procedures within the contract. END_STATUTE