The Kansas Residential Construction Defect Act: a Schematic Blueprint for Repairs
| Jurisdiction | Kansas,United States |
| Citation | Vol. 74 No. 3 Pg. 20-23 |
| Pages | 20-23 |
| Publication year | 2005 |
74 J. Kan. Bar Assn. 3, 20-23 (2005). The Kansas Residential Construction Defect Act: A Schematic Blueprint for Repairs
74 J. Kan. Bar Assn. 3, 20-23 (2005)
A young couple recently visited a Kansas lawyer's office to discuss their profound disappointment with their new home. After closing the purchase of their major new investment, they discovered several windows leak after a heavy rain from the east. Water stands in a corner of the backyard following completion of their landscaping. The electrical circuit breaker for the master bath trips when both a hair dryer and iron are running. The great room fireplace does not look the way they expected. But the contractor, worn out from months of trying to meet the owner's expectations, had not-so-politely declined to perform additional work. Surely the owners must have a remedy.
Emotion-charged arguments between homeowners and their contractors present the closest noncriminal law practice analogy to a domestic dispute. Nonexistent or poorly prepared construction drawings and specifications fuel misunderstandings about the contractor's scope of the work and the owners' quality expectations. The patience of inexperienced and generally unsophisticated (in construction matters) home owners has been frayed. Contractors frequently complain they have not been afforded an opportunity to correct perceived deficiencies. And litigation is not very productive; in a majority of residential construction issues, formal dispute resolution proceedings simply are not cost effective.
Although it is too early to call it a movement, some states have attempted to address this quagmire with industry-sponsored legislation that gives contractors both formal notice of and time to repair construction defects before being hauled into court. Kansas is one of 23 states, including Colorado, Illinois, Indiana, Montana, and Texas, with residential construction legislation.(fn1) Alabama, Nebraska, Ohio, Oklahoma, Pennsylvania, Vermont, Wisconsin, and Wyoming are considering (as of November 2004) similar laws.
The Kansas statute, enacted by the 2003 Legislature and codified as K.S.A. §60-4701 et seq., is the most significant Kansas construction legislation in more than 15 years. Called by this author the Residential Construction Defect Act (Act), the statute mandates a multistep procedure that must be followed before a homeowner can file construction defect litigation; imposes on contractors new requirements for contract provisions and subcontractor lists; and empowers homeowners unilaterally to choose arbitration in lieu of litigation for their disputes. If the contractor manages the process appropriately, the statute provides a minimum 90-day cooling-off period from notice of the homeowner's claim to the date of filing suit.
The Act, which became effective July 1, 2003, is intended to allow residential contractors and subcontractors an opportunity to fix construction problems before the commencement of litigation. The penalty for homeowner noncompliance is dismissal of the lawsuit without prejudice, with a bar to refiling until the homeowner clears the notice hurdles.
I. Scope of the Act
The Residential Construction Defect Act applies to a claimant's action against a contractor for construction defects in the construction or remodel of a dwelling - all terms defined in the statute. The Act is triggered by a:
construction defect, which means "a deficiency in or arising from the specification...
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