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Your Construction Defect Claim – Notice requirements pre-suit.

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If you have a construction defect claim, you cannot simply file a complaint against the construction professionals responsible.  In 2003, the Colorado legislature enacted the Colorado Construction Defect Action Reform Act, C.R.S. § 13-20-801 et seq. (“CDARA”), which was designed, in part, to reduce litigation and promote resolution of claims prior to suit by instituting a formal notice of claim process that must be completed before a complaint is filed.  Failure to follow the notice of claim process will result in a stay of the action.

Under CDARA, a “notice of claim” means a written notice sent by a claimant to the last known address of the construction professional responsible for the claimed defect.  Importantly, the notice of claim must be reasonably detailed to allow the recipient to determine the general nature of the defect claimed.  For example, the notice of claim must include a general description of the type and location of the construction that the claimant alleges to be defective and any damages claimed to have been caused by the defect.  For some claimants, this can prove difficult early on in the process when the extent of construction defects may be unknown.  A claimant may amend his notice of claim to include additional defects later on, however, the claimant must comply with the notice provisions of CDARA for additional claims.

In the case of residential property, the notice of claim must be delivered no later than 75 days before filing an action against the construction professional and no later than 90 days before filing an action in the case of commercial property.  In either case, the claimant must deliver the notice by certified mail, return receipt requested, or by personal service.

Following delivery of the notice of claim, the claimant must provide the construction professional (as well as its contractors or other agents) reasonable access to the claimant’s property during normal working hours to inspect the property and the claimed defects.  This can sometimes prove problematic, particularly where tensions between a homeowner and construction professional are high.  However, this inspection must be allowed at the request of the construction professional and completed within 30 days of service of the notice of claim. 

Within 30 days following completion of the inspection of a residential property by the construction professional (45 days for commercial property), the construction professional may submit a written offer to settle the claim.  CDARA provides specific requirements for what must be included in a written offer to settle, which must be sent via certified mail, return receipt requested, or by personal service.  For example, the written offer must include a report of the scope of inspection, the findings and results of the inspection, a description of the additional construction work necessary to remedy the defect and damages and a timetable for completion of the remedial work.  Unless a claimant accepts this offer in writing within 15 days of delivery, the offer will be deemed rejected.

If no offer is made by the construction professional or if the claimant rejects an offer, the claimant may now bring an action against the construction professionals responsible.  If an offer by a construction professional is made and accepted but the construction professional does not comply with its offer to remedy or settle the claim, the claimant may bring the action without further notice.