Building a new home or remodeling your current home is an opportunity to transform your dream home into a reality. But when your contractor makes a mistake, your dream home can quickly turn into a nightmare.
When a contractor causes a construction defect, the contractor will often demand to inspect and repair the alleged defect. Many homeowners understandably fear that the contractor who caused the defect will just make the issue worse. Homeowners in this predicament often ask, “Do I have to allow this contractor to come back to my property, or can I just sue my contractor now and have someone else fix the problem?” The answer, as with most legal issues, is: “It depends.”
Many states have a general “right to repair” law that requires homeowners to allow contractors to offer to repair an alleged construction defect.[1] Minnesota does not. But a contractor may still have a “right to repair” in some circumstances.
For example, the statutory warranties provided by Minn. Stat. Ch. 327A offer unique protections to homeowners, but they also require homeowners to allow their contractor an opportunity to inspect and repair any alleged defect before filing a lawsuit. Specifically, the homeowner must notify the contractor in writing of the alleged defect within six months of when the homeowner discovered (or should have discovered) the defect.[2] The contractor has 30 days from the date of this notification to inspect the defect at the homeowner’s property.[3] Within 15 days of the inspection, the contractor must then provide the homeowner with a detailed offer to repair the defect.[4] If the homeowner and the contractor cannot agree on a scope of work for the repair, they must submit the matter to the homeowner dispute resolution process under Minn. Stat. § 327A.051.[5] Alternatively, if the contractor fails to inspect the defect or provide an offer to repair within these time limits, the homeowner may proceed with a lawsuit.[6] However, even if a homeowner fails to comply with these statutory requirements, he or she may still have a claim against the contractor for breach of contract or negligence, among other possible claims.
Speaking of a breach of contract claim, it is common for construction contracts to include a provision that allows the contractor an opportunity to inspect and repair an alleged defect. If a homeowner fails to comply with this provision, the homeowner’s breach of contract claim may fail, but the homeowner may still have a negligence claim against the contractor.
One other consideration for homeowners to keep in mind is that, even if your contractor does not necessarily have the right to repair a construction defect, it may nonetheless be a good idea to allow the contractor to repair the defect (assuming the contractor is willing to do so). This option is often a lot faster and cheaper than suing your contractor and then paying someone else to do the repairs. If your case proceeds to litigation, allowing your contractor an opportunity to repair the defect could also stave off an argument by the contractor that you failed to mitigate your damages.[7]
In summary, while Minnesota does not have a general requirement that homeowners allow contractors to inspect and repair their faulty work before filing a construction defect lawsuit, a contractor does have a “right to repair” in certain contexts, like if the construction contract grants the contractor this right. Homeowners should strongly consider consulting with an experienced construction law attorney before they take any legal action against their contractor.
[1] See, e.g., Fla. Stat. § 558.004 (Florida); S.D. Codified Laws § 21-1-16 (South Dakota); Tex. Prop. Code § 27.004 (Texas); Wis. Stat. § 895.07 (Wisconsin); Colo. Stat. § 13-20-803.5 (Colorado). [2] Minn. Stat. § 327A.03(a). [3] Minn. Stat. § 327A.02, subd. 4. [4] Id., subd. 5. [5] Id. [6] Id., subd. 6. [7] See Marshall v. Marvin H. Anderson Const. Co., 167 N.W.2d 724, 730 (Minn. 1969) (analyzing homeowners’ attempt to mitigate damages in construction defect lawsuit).
