Session Law

Identifying Information:L. 2003 ch. 074
Other Identifying Information:2003 Substitute for House Bill 2294*
Tax Type:Other
Brief Description:An Act concerning civil procedure; relating to the filing of lawsuits concerning construction defects.
Keywords:


Body:

CHAPTER 74

Substitute for HOUSE BILL No. 2294*

An Act concerning civil procedure; relating to the filing of lawsuits concerning

construction defects.


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

Section 1. As used in this act:

(a) ``Action'' means any civil action or arbitration proceeding between

a claimant and a contractor for damages or indemnity asserting a claim

for injury or loss to a dwelling or personal property caused by an alleged

defect arising out of or related to the construction or a remodel of a

dwelling.

(b) ``Association'' means a non-profit homeowners organization as de-

fined in K.S.A. 60-3611, and amendments thereto.

(c) ``Claimant'' means a homeowner, including a subsequent pur-

chaser, or association who asserts a claim against a contractor concerning

a defect in the construction or in the remodel of a dwelling.

(d) ``Construction defect'' or ``defect'' means a deficiency in, or a de-

ficiency arising out of the specifications, planning, supervision or con-

struction of residential improvements that results from any of the follow-

ing:

(1) Defective material, products or components used in the construc-

tion of residential improvements.

(2) Violation of the applicable codes in effect at the time of construc-

tion of residential improvements.

(3) Failure to construct residential improvements in accordance with

accepted trade standards for good and workmanlike construction at the

time of construction.

(e) ``Contractor'' means any person, firm, partnership, corporation,

association or other organization that is engaged in the business of con-

structing dwellings.

(f) ``Dwelling'' means a single-family house, duplex or multifamily

unit designed for residential use in which title to each individual unit is

transferred to the owner under a condominium or cooperative system

and shall include common areas and improvements that are owned or

maintained by an association or by members of an association. A dwelling

includes the systems and other components and improvements that are

part of a single or multifamily unit at the time of construction. For the

purposes of this act ``dwelling'' does not mean manufactured home as

defined in K.S.A. 58-4202, and amendments thereto.

(g) ``Serve'' or ``service'' means personal service or delivery by certi-

fied mail, return receipt requested, to the last known address of the ad-

dressee.

(h) ``Subcontractor'' means a contractor who performs work on behalf

of a contractor in the construction of a dwelling.

Sec. 2. (a) If a claimant files an action against a contractor without

service of notice under this act, the action shall be dismissed without

prejudice upon motion of the contractor filed within 60 days of service

of process. An action against a contractor cannot be refiled until the par-

ties have complied with the provisions of this act. A dismissal pursuant to

this subsection shall not count as a dismissal for purposes of subsection

(a)(1) of K.S.A. 60-241, and amendments thereto.

(b) If the statute of limitations would expire during the time period

necessary to allow the parties to comply with the provisions of this act,

the statute of limitations shall be tolled if the claimant gives notice of the

claim to the contractor within 90 days of entry of the order of dismissal

of the action without prejudice pursuant to subsection (a).

(c) If the statute of limitations would expire during the time period

necessary to allow the parties to comply with the provisions of this act,

the claimant's notice of claim shall serve to toll the statute of limitations

for 180 days after the latest of the following three dates: (1) The date the

claimant personally serves or mails the notice of claim; (2) the date agreed

upon for the contractor to make payment under subsection (c)(3) or (g)(2)

of section 4, and amendments thereto; or (3) the date agreed upon for

the contractor to completely remedy the construction defect under sub-

section (c)(2) or (g)(1) of section 4, and amendments thereto.

(d) Nothing in this section shall be interpreted to shorten the statute

of limitations under K.S.A. 60-501 et seq., and amendments thereto, oth-

erwise applicable to a claimant's action against a contractor.

Sec. 3. (a) Nothing in this act shall apply to actions arising out of

claims for personal injury or death or where the defect or damage to the

dwelling is so substantial that it is not habitable.

(b) This act shall not supersede express warranty, implied warranty

or other provisions of a contract between the contractor and the claimant.

Sec. 4. (a) Before the filing of an action brought against a contractor

arising out of the construction of a dwelling, the claimant shall serve

written initial notice of claim on the contractor. The initial notice of claim

shall state that the claimant asserts a construction defect claim and the

notice of claim shall describe the claim or claims in detail sufficient to

determine the general nature of any alleged construction defects.

(b) Within 15 days after service of the notice of claim, the contractor

shall serve a copy of the notice to each subcontractor who may be re-

sponsible for a defect specified in the notice and include with the notice

the specific defect for which the contractor believes the subcontractor

may be responsible.

(c) Within 30 days after service of the notice of claim by claimant,

each contractor that has received such notice shall serve a written re-

sponse on the claimant. The written response shall:

(1) Propose to inspect the dwelling that is the subject of the claim;

(2) offer to remedy the alleged construction defect at no cost to the

claimant including a description of the additional construction necessary

to remedy the defect, a specification of the date when the contractor

proposes to commence the work and the date the work will be completed;

(3) offer to compromise and settle the claim by monetary payment

without inspection including a specification of the amount of the payment

and the date the payment will be made; or

(4) state that the contractor disputes the claim and will neither rem-

edy the alleged construction defect nor compromise and settle the claim.

(d) If the contractor refuses service under subsection (a), disputes

the claim pursuant to subsection (c)(4), does not respond to the claimant's

notice of claim within the time stated in subsection (c), does not com-

mence or complete the work on the alleged construction defect on the

date specified in subsection (c)(2) or does not make the payment in the

time specified in subsection (c)(3), the claimant may bring an action

against the contractor without further notice.

(e) If the claimant rejects the inspection proposal or the settlement

offer made by the contractor pursuant to subsection (c), the claimant shall

serve written notice of the claimant's rejection on the contractor. After

service of the rejection, the claimant may bring an action against the

contractor without further notice. The claimant may alternatively elect an

arbitration process pursuant to K.S.A. 5-201 et. seq., and amendments

thereto. Failure to give the notice required by this subsection shall not

require the dismissal of the action under subsection (a) of section 2, and

amendments thereto.

(f) If the claimant elects to allow the contractor to inspect the dwell-

ing in accordance with the contractor's proposal pursuant to subsection

(c)(1) the claimant shall notify the contractor and shall provide the con-

tractor and its agents access to the claimant's dwelling during normal

working hours to inspect the premises and the claimed defect to deter-

mine the nature and cause of the alleged defects and the nature and

extent of any repairs or replacements necessary to repair the alleged de-

fects. Such inspection shall occur within 30 days of the claimant's notifi-

cation to the contractor under this section.

(g) Within 30 days following completion of the inspection, the con-

tractor shall serve on the claimant a written:

(1) Offer to remedy the construction defect at no cost to the claimant,

including a report of the scope of the inspection, the findings and results

of the inspection, a description of the additional construction necessary

to remedy the defect, a specification of the date when the contractor

proposes to commence the work and the date the work will be completed;

(2) offer to compromise and settle the claim by monetary payment

including a specification of the amount of the payment and the date the

payment will be made; or

(3) statement that the contractor will not proceed further to remedy

the defect.

(h) If a claimant accepts a contractor's offer made pursuant to sub-

section (g)(1) or (g)(2) and the contractor does not proceed to remedy

the construction defect or make the monetary payment within the agreed

timetable, the claimant may bring an action against the contractor without

further notice.

(i) If the contractor does not respond within the time period specified

by subsection (g) or a claimant receives a written statement that the con-

tractor will not proceed further to remedy the defect, the claimant may

bring an action against the contractor without further notice.

(j) If the claimant rejects the offer made by the contractor to either

remedy the construction defect or to make the monetary payment, the

claimant shall serve written notice of the claimant's rejection on the con-

tractor. After service of the rejection the claimant may bring an action

against contractor without further notice.

(k) Any claimant accepting the offer of the contractor to remedy the

construction defects shall do so by serving the contractor with a written

notice of acceptance no later than 30 days after receipt of the offer.

(l) If a claimant accepts a contractor's offer to repair a defect de-

scribed in a notice of claim, the claimant shall provide the contractor and

its agents reasonable access to the claimant's dwelling during normal

working hours to perform and complete the construction by the timetable

stated in the offer.

(m) Absent good cause, the contractor's failure to respond in good

faith to the claimant's notice of claim shall preclude the contractor from

asserting that the claimant did not comply with the provisions of this act.

Sec. 5. (a) A contractor who receives a notice of a construction defect

pursuant to this act, may present the notice to an insurer who issued a

policy of insurance covering all or part of the conduct or business of the

contractor or subcontractor.

(b) Such notice provided to an insurer:

(1) Constitutes the making of a claim under the policy; and

(2) requires the contractor, subcontractor and the insurer to perform

any obligations or duties required by the policy upon the making of a

claim.

Sec. 6. (a) Upon entering into a contract for construction or remodel

of a dwelling, the contractor shall provide notice to the potential claimant

of the contractor's right to offer to repair construction defects before a

claimant may commence litigation against the contractor. Such notice

shall be conspicuous and may be included as part of the underlying con-

tract.

(b) Such notice shall be in substantially the following form: Kansas

law contains important requirements you must follow before you may file

a lawsuit for defective construction against the contractor who con-

structed your home. Ninety days before you file your lawsuit, you must

deliver to the contractor a written notice of any construction conditions

you allege are defective and provide your contractor the opportunity to

make an offer to repair or pay for the defects. You are not obligated to

accept any offer made by the contractor. There are strict deadlines and

procedures under state law, and failure to follow them may affect your

ability to file a lawsuit.

Sec. 7. Each contractor who constructs a new residential dwelling

shall, within 30 days after the close of the sale, provide in writing to the

initial purchaser of the residence:

(a) The name, license number if applicable, business address and tel-

ephone number of each subcontractor who performed any work related

to the construction of the dwelling; and

(b) a brief description of the work performed by each subcontractor

identified pursuant to this section.

Sec. 8. (a) A person shall not provide or offer to provide anything of

monetary value to a property manager of an association or to a member

or officer of an executive board of an association to induce the property

manager, member or officer to encourage or discourage the association

to file a claim for damages arising from a construction defect.

(b) A property manager shall not accept anything of value given in

exchange for encouraging or discouraging the association that such prop-

erty manager manages to file a claim for damages arising from a construc-

tion defect.

(c) A member or officer of an executive board of an association shall

not accept anything of value given in exchange for encouraging or dis-

couraging the association of which such person is a member or officer of

the executive board to file a claim for damages arising from a construction

defect.

(d) A person who willfully violates this section shall be guilty of a class

C nonperson misdemeanor.

Sec. 9. (a) An association may bring an action to recover damages

resulting from construction defects in any of the units, common elements

or limited common elements of the common-interest community only:

(1) Upon a vote of the units' owners to which at least a majority of

the votes of the members of the association are allocated; and

(2) upon a vote of the executive board of the association.

(b) An association or an attorney for an association shall not employ

a person to perform destructive tests to determine any damage or injury

to a unit, common element or limited common element caused by a

construction defect unless:

(1) The person performing the tests is someone in the business of

performing such tests and analysis;

(2) the person performing the tests has provided a written schedule

for repairs;

(3) the person performing the tests is required to repair all damage

resulting from such tests in accordance with state laws and local ordi-

nances and codes relating thereto; and

(4) the association or the person so employed obtains all permits re-

quired to conduct such tests and to repair any damage resulting from

such tests.

(c) An association may commence an action only upon a vote or writ-

ten agreement of the owners of the units to which at least a majority of

the votes of the members of the association are allocated. In such a case,

the association shall provide written notice to the owner of each unit of

the meeting at which the commencement of an action is to be considered

or action is to be taken within 21 calendar days before the meeting.

(d) In the absence of a contractual provision to the contrary, the ex-

ecutive board of an association, without giving notice to the units' owner's,

may employ a contractor and such other persons as are necessary to make

such repairs to a unit or common element within the common-interest

community as are required to protect the health, safety and welfare of

the units' owners.

Sec. 10. If any provision of this act or the application thereof to any

person or circumstance is held invalid, the invalidity does not affect other

provisions or applications of this act which can be given effect without

the invalid provision or application, and to this end the provisions of this

act are severable.

Sec. 11. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 14, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003