Contributor: Lee Grossman

When Can A Homeowner Demand Repairs From A Contractor?

Construction defects will happen during new home construction. It’s a common occurrence. Things just go wrong. It’s not something that the contractor or the owner planned on, but it will happen. The question is what do the owner and contractor do in these situations? What are their respective rights?

North Dakota has a specific statute on warranty repairs for home construction. The law was implemented in 2005. Owners and contractors should comply with this law to make sure construction defects are properly discovered, identified, and everyone follows the same framework of the statutory warranty for new home construction.

What Does North Dakota Law Say?

N.D.C.C. § 43-07-26 says:

Before undertaking any repair, other than emergency repair, or instituting any action for breach of warranty in the construction of a one-family or two-family dwelling, or an improvement with a value exceeding two thousand dollars to a dwelling, the purchaser or owner shall give the contractor written notice by mail, within six months after knowledge of the defect, advising the contractor of any defect and giving the contractor a reasonable time to comply with this section. Within a reasonable time after receiving the notice, the contractor shall inspect the defect and provide a response to the purchaser or owner, and, if appropriate, remedy the defect within a reasonable time thereafter. The contractor shall provide the purchaser or owner written notice of the requirements of this section at the time of closing for the property or, in the case of an improvement, at the time of completion of the improvement. For the purposes of this section, “reasonable time” means within thirty business days after the notice is mailed or any shorter period of time as may be appropriate under the circumstances.

Let’s break this statute down a little.

• The construction must be on a one-family or two-family dwelling, or an improvement to this type of dwelling exceeding $2,000. Single family homes, duplexes, and twinhomes fall into this category. It is not meant to cover multi-family apartment buildings, commercial buildings, or industrial buildings.
• The owner must give written notice to the contractor of the defect. The notice must be sent by mail and within six months after the owner discovers knowledge of the defect. Emails and text messages are not written notice contemplated by the statute.
• The owner must give the contractor the opportunity to inspect the defect and repair it. The statute does now allow the owner to repair the defect first and then give the contractor notice.
• The contractor has the right to repair or replace the defect within 30 days of receiving the notice of defect. If the owner does not give the contractor the opportunity to repair or replace, the warranty will likely be waived.

What Is Knowledge Of The Defect?

Knowledge of the defect is different from the time when the defect occurred. Many defects in new home construction are hidden behind finished walls (e.g., plumbing) or take several months to materialize (e.g., mold). If the plumbing in a home has a defect, like a pinhole leak, it is defective at the time the plumbing was done incorrectly. But the owner may not know the plumbing is defective until mold appears in a corner of a room. According to the North Dakota statute, the time limit for the warranty doesn’t start until the owner discovers the defect.

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