The notice and opportunity to repair act prohibits an owner from suing a “construction professional” without first providing written notice of a claim. Idaho Code § 6-2503(1). The written notice must describe the claim in “reasonable detail.” Id. If the notice is not given before a lawsuit is filed, the lawsuit must be dismissed. Id. When the notice is served, the statute of limitation is tolled (i.e., it stops). Id.
When the construction professional receives the notice, he or she has twenty-one (21) days to provide a written response. Idaho Code § 6-2503(2). The response must state one of three things:
-
- The construction professional will inspect the defect and, after the inspection, propose a remedy, pay the owner, or dispute the claim;
- Offer to settle the claim; or
- Dispute the claim.
If the construction professional does not respond or disputes the claim, the owner may file a lawsuit. Idaho Code § 6-2503(3)(a).
If the owner rejects the claim, the owner may sue. Idaho Code § 6-2503(3)(b). If the owner fails to respond to an offer to settle from the construction professional within thirty (30) days, then the offer expires. Id. The owner may then sue. Id.
If the construction professional requests to inspect the premises, then the owner must provide “reasonable access” during normal working hours. Idaho Code § 6-2503(4)(a). Within fourteen (14) days of any inspection, the construction professional must send the owner a written offer fix the problem, a settlement offer, or a refusal to fix the problem. Idaho Code § 6-2503(4)(b). If the construction professional offers to fix the problem, a timetable for completion must also be included. Id. If the timetable is not met, the owner may sue. Idaho Code § 6-2503(4)(c).
If the owner rejects an offer by the construction professional to fix the problem or pay damages, the owner must state it in writing. Idaho Code § 6-2503(4)(d). Once the rejection notice is served, the owner may sue. Id. If thirty (30) days goes by without a response from the owner, the construction professional may terminate the offer in writing. Id.
If the owner elects to have the construction professional fix the problem, it should state that to the construction professional in writing within thirty (30) days. Idaho Code § 6-2503(5)(a). Again, the owner must provide the construction professional “reasonable access” to complete the repairs. Id. The statute also states the obvious: the owner and construction professional can agree to alter the timetable or the scope of the work, but it must be in writing. Id. If the construction professional fails to complete the repair or meet the timetable, the owner may sue. Idaho Code § 6-2503(7).
Finally, all statements by the construction professional trying to resolve the claim are not “an admission of liability and shall not be admissible in an action subject to this section.” Idaho Code § 6-2503(6).
The notice and opportunity to repair act also limits the damages the owner may get in a lawsuit. Idaho Code § 6-2504. The damages the owner may recover are:
-
- Reasonable cost of the repairs, including engineering and consulting fees;
- Costs of temporary housing;
- Reduction in market value due to a structural failure; and
- Reasonable and necessary attorney’s fees.
Idaho Code § 6-2504(1). That said, these limitations on damages are thrown out if the construction professional fails to make a reasonable offer to fix the problem or fails to complete repairs. Idaho Code § 6-2504(2). On the other side, if the owner unreasonably rejects the construction professional’s offer, then the owner is limited to:
-
- The reasonable costs of offered repairs.
OR
-
- The amount of a reasonable settlement offer
AND
2. Reasonable and necessary attorney’s fees and costs incurred before the settlement offer was rejected.
Idaho Code § 6-2504(3).
No owner may recover more than the purchase price or the current fair market value of the residence without the construction defect. Idaho Code § 6-2504(4). Moreover, a builder is provided special protections. Idaho Code § 6-2504(5). These are:
-
- A structural defect was caused by an “unforeseen act of nature”, which includes a weather condition, earthquake or man-made event such as war, terrorism or vandalism, in excess of the design criteria expressed by the applicable building codes, regulations and ordinances in effect at the time of original construction;
- The owner failed to minimize or prevent damages;
- The owner failed to follow the builder’s or manufacturer’s recommendations or commonly accepted homeowner maintenance obligations;
- The damage was caused by alterations, ordinary wear and tear, misuse, abuse, neglect or use other than the intended purpose;
- The statute of limitations has run;
- The builder has a release; and
- The builder’s repair fixed the problem.
Idaho Code § 6-2504(5).