BILL REQ. #: S-4047.2
State of Washington | 61st Legislature | 2010 Regular Session |
Read first time 01/22/10. Referred to Committee on Labor, Commerce & Consumer Protection.
AN ACT Relating to real property warranties; and adding new sections to chapter 64.50 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 64.50 RCW
to read as follows:
(1) The legislature intends by this section to modify the common
law implied warranty of habitability to provide that this warranty may
not be contractually disclaimed, waived, modified, or limited. The
legislature does not intend to modify any other aspect of the common
law implied warranty of habitability as developed through case law.
(2) The common law implied warranty of habitability may not be
disclaimed, waived, modified, or limited by contractual agreement. A
provision of any contract for the purchase or sale of newly constructed
residential property that purports to disclaim, waive, modify, or limit
the implied warranty of habitability is void and unenforceable.
NEW SECTION. Sec. 2 A new section is added to chapter 64.50 RCW
to read as follows:
(1) For the purposes of this section:
(a) "Builder vendor" means a person, natural or otherwise, engaged
in the business of erecting or constructing a new home or who purchases
a new home for purposes of resale in the course of its business.
(b) "Construction professional" means an architect, builder,
builder vendor, contractor, subcontractor, engineer, or inspector,
performing or furnishing the design, supervision, inspection,
construction, or observation of the construction, of any improvement to
residential real property, whether operating as a sole proprietor,
partnership, corporation, or other business entity.
(c) "Inspector" means a person licensed under chapter 18.280 RCW.
(d) "Residential real property" means a single-family home, a
duplex, a triplex, or a quadraplex and does not include a manufactured
or mobile home as defined in RCW 65.20.020.
(e) "Substantial completion of construction" means the state of
completion reached when an improvement upon real property may be used
or occupied for its intended use.
(2) A construction professional involved in the construction of new
residential real property, or the substantial remodel of existing
residential real property, warrants that the work, and any part
thereof, will be suitable for the ordinary uses of real property of its
type and that the work will be:
(a) Free from defective materials;
(b) Constructed in accordance with sound engineering and
construction standards;
(c) Constructed in a work-like manner; and
(d) Constructed in compliance with all laws then applicable to the
improvements.
(3) If a construction professional breaches a warranty arising
under this section and the breach results in damage to any portion of
the residential real property, the current owner of the residential
real property may bring a cause of action for damages against the
construction professional. Absence of privity of contract between the
owner and the construction professional is not a defense to the
enforcement of a warranty arising under this section.
(4) In a judicial proceeding for breach of a warranty arising under
this section, the plaintiff must show that the alleged breach has
adversely affected or will adversely affect the performance of that
portion of the property alleged to be in breach. To establish an
adverse effect, the person alleging the breach is not required to prove
that the breach renders the property unfit for occupancy. As used in
this subsection, "adverse effect" must be more than technical and must
be significant to a reasonable person.
(5) Proof of breach of a warranty arising under this section is not
proof of damages. Damages awarded for a breach of a warranty arising
under this section are the cost of repairs. However, if it is
established that the cost of repairs is clearly disproportionate to the
loss in market value caused by the breach, damages are limited to the
loss in market value.
(6)(a) A judicial proceeding for breach of a warranty arising under
this section must be commenced within four years after the cause of
action accrues. This period may not be reduced by either oral or
written agreement, or through the use of contractual claims or notice
procedures that require the filing or service of any claim or notice
prior to the expiration of the period specified in this section.
(b) Except as provided under (c) of this subsection, a cause of
action for breach of a warranty arising under this section accrues,
regardless of the owner's lack of knowledge of the breach:
(i) In the case of the purchase of newly constructed residential
real property, on the date the initial owner enters into possession of
the property; or
(ii) In the case of the substantial remodel of existing residential
real property, on the date of substantial completion of construction or
termination of the construction project, whichever is later.
(c) A cause of action for breach of a warranty arising under this
section that is based on a latent structural defect or a latent water
penetration defect accrues when the claimant discovers or reasonably
should have discovered the latent structural defect or latent water
penetration defect.
(d) An action for breach of warranty under this section is subject
to the time limitations provided in RCW 4.16.310.
(7) If a written notice of claim is served under RCW 64.50.020
within the time prescribed for the filing of an action under this
section, the statute of limitations in this section and any applicable
statute of repose for construction-related claims are tolled until
sixty days after the period of time during which the filing of an
action is barred under RCW 64.50.020.
(8) The warranties provided under this section are in addition to
any other rights or remedies available under statutory law or common
law or provided for under contract. The warranties provided under this
section may not be waived, disclaimed, modified, or limited.
(9) In a judicial proceeding under this section, the court may
award reasonable attorneys' fees and costs to the prevailing party.
(10) This section is not intended to create an independent right to
maintain a class action against any construction professional.
(11) This section does not apply to condominiums subject to chapter
64.34 RCW.
(12) This section does not affect the application of the notice and
opportunity to cure requirements and procedures imposed under RCW
64.50.010 through 64.50.050.
(13) An action for breach of a warranty created under this section
is subject to any requirements for mandatory arbitration imposed under
chapter 7.06 RCW or state or local court rules.