What are you supposed to do if you’ve paid for a huge construction project at your home or commercial facility and after the job is completed, you discover something’s wrong? Do you call the contractor and make a personal agreement? File a lawsuit? Well, it depends. In the episode below, On Subrogation: Right to Repair & Cure Laws in Construction, subrogation attorney Steven Alsip explains.
The world of construction is high-stakes; the product directly affects people’s quality of life, and possibly safety, in both private and public settings. It’s a delicate balance of time, money, and mutual trust. However, construction is complex, and people are only human – mistakes and oversights are bound to occur even with the best intentions. Whether a homeowner or project owner discovers a defect – faulty electrical, a leaky water line, a step crack in a new foundation – the immediate impulse is to file a lawsuit.
However, in nearly half of the US, a unique legal mechanism known as the right to repair or right to cure functions as a mandatory pre-suit negotiation. Understanding these laws is essential for homeowners, contractors, and subrogation professionals alike; they represent a fundamental shift in construction disputes aimed to foster a collaborative, remedial process to avoid litigation.
What is the Right to Cure?
The right to cure is a statutory mechanism that allows construction companies, architects, and designers the opportunity to fix mistakes before facing a lawsuit. Rather than jumping right to serving the contractor papers, they are given a chance to make things right. Currently, the right to cure is available in 24 states. It temporarily protects contractors from litigation, allowing them a fair opportunity to respond, inspect, and repair the alleged defect. Defects may include:
- Poor workmanship
- Design errors
- Use of defective materials
- Code violations
- Breach of contract
- Warranty issues
These rights often cover any parties involved in construction projects, including:
- General contractors
- Subcontractors
- Architects and designers
- Engineers
- Developers
Lawsuits involving construction projects are inherently complex; they involve multiple parties and multiple legal theories, including negligence, breach of contract, and breach of warranty.
The Pre-Lawsuit Notice Requirement in Right to Cure
Although it is not a lawsuit, the notice requirement to initiate this process is equally as important – and as mandatory – as service of process in litigation. Before any legal action is taken, a property owner must provide written notice to the contractor describing the alleged defects. This notice should include:
- A detailed description of the defects
- The nature of the problem and its impacts
- Supporting documentation (i.e., videos, photos)
- Any available expert reports or inspector assessments
The goal of this process is cooperation within a structured legal framework. The contractor must receive sufficient information to understand the claim and evaluate their response. In most states with Right to Cure statutes, contractors are given a defined period—often around 90 days—to respond. This timeline functions as a key part of the statutory framework, similar in importance to a statute of limitations.
Inspection, Response, & Exchange of Information
The contractor generally has the right to inspect the alleged defects after receiving notice, which is an important step in creating an equitable process; the contractor can verify the condition, assess the cause, and determine the best course of action. Typically, the contractor will have have 30 days to conduct an inspection. Non-destructive testing—such as visual inspections or moisture readings—is permitted. However, destructive or invasive testing is limited and requires prior notice to the property owner. During this phase, the property owner must cooperate by providing reasonable access to the site.
Once the inspection is completed, the contractor must decide how to respond within a defined period – often 14 days. The contractor must then provide a written response in which they may choose to:
- Agree to repair the defect
- This route leads to quick resolution without litigation
- Offer a monetary settlement
- This may resolve the dispute financially
- Deny or reject the claim
- This allows the property owner to proceed to legal action
Silence on behalf of the contractor is usually treated as the rejection of a claim. Hence, if the contractor fails to respond in the set time period, the property owner is typically allowed to move forward with a formal lawsuit. However, compliance with the statutory framework is crucial – if the property owner files an immediate lawsuit in a jurisdiction that applies the right to cure, the claim may be dismissed or delayed until those requirements are met.
Importantly, construction defect claims often develop or worsen over time, such as a roof leak eventually leading to a rotted strut. Each time, a new written notice must be provided; the same initial framework applies. This requirement reinforces the importance of early, thorough investigations but also recognizes that not all defects will be immediately apparent.
Why These Laws Matter for Subrogation Claims
For subrogation lawyers, right to repair and cure laws are more than procedural formalities; they can directly affect the ability to recover damages. And per usual, these are jurisdictional nuances that vary by state – carriers need a subrogation law firm able to handle large, multi-state claims with jurisdiction-specific proficiency. As subrogation involves the insurer stepping into the shoes of their insured, compliance with right to cure statutes becomes a key consideration in subrogation claims involving construction and property damage.
Failure to follow these requirements can create significant obstacles, such as delayed recovery timeline, increased litigation cost, and potential dismissal of the subrogation demand. Conversely, understanding and properly navigating these laws effectively improves efficiency and strengthens the case for recovery. Given the complexity and variability of right to cure laws, a structured approach to such subrogation cases is critical. Key considerations should include:
- Jurisdiction: Each state has its own rules, deadlines, and procedures.
- Early case evaluation: Determining whether right to cure applies at the outset saves time and prevents missteps.
- Documentation: Detailed evidence of defects is critical for both notice and litigation.
- Coordination with experts: Third-party engineers and construction professionals can help identify and assess defects.
- Timing: Strict adherence to statutory deadlines is necessary to preserve claims.
Right to repair and cure laws are ultimately about balance and equity. Most contractors mean well; they deserve the benefit of the doubt and a chance to repair their work. At the same time, the property owner deserves a clear route to seek compensation when it is needed. When used correctly, these rights reduce conflict, lower costs, and save time as compared to litigation.
In subrogation, details matter; understanding these statutes is necessary. Whether evaluating a subrogation claim, pursuing recovery, or managing risk, proficiency in this legal theory helps ensure claims are handled effectively and opportunities for pre-suit resolution are not missed.
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