- Posted by Brett M. Hill
- On January 3, 2008
In 2002, the Legislature enacted RCW 64.50 in an attempt to reduce the amount of construction defect litigation in residential and condominium construction. RCW 64.50 established requirements for pre-litigation notice and opportunity to cure which, under certain circumstances, must be adhered to prior to the initiation of litigation by a homeowner. RCW 64.50.050 states the provisions of RCW 64.50 do not apply unless the “construction professional” includes a notice to the homeowner in its contract in the form described in the statute.
In this case, Lakemont Ridge Homeowner’s Association v. Lakemont Ridge LP, No. 76850-1, ____ Wn.2d ____, ____ P.3d ____ (April 16, 2006), the Lakemont Ridge Homeowner’s Association commenced a construction defect action against the project’s developer without first providing the written notice required by RCW 64.50.020. The developer moved to dismiss its action. The Homeowner’s Association argued it was not required to give notice because this project was begun and completed before RCW 64.50 had been enacted and that the developer had not included the notice in its contract required by the statute (RCW 64.50.050) to trigger the statute’s applicability. The Homeowner’s Association prevailed, and the developer and other defendants appealed.
On appeal, the Court of Appeals reversed, holding that pre-litigation written notice was required even though the developer had not included the statutorily-required language in its contracts with the condominium owners. The Court noted that the written notice requirement of RCW 64.50.020 applied to “every” construction defect action and not just to those involving projects begun after RCW 64.50 was enacted. The Court also stated that the Homeowner’s Association’s interpretation would delay the chapter’s intended effect of reducing construction defect litigation. The Court rationalized that homeowners would not be prejudiced by its interpretation, because the failure to give notice would only result in a dismissal of the defect action “without prejudice” and that the homeowner could simply re-file after giving notice and following the procedures of RCW 64.50. The Court of Appeals held that the requirement of RCW 64.50.050 (notice to the homeowner in its contract) applied only to those projects which commenced after the statute was enacted.
The Washington Supreme Court reversed finding that the pre-litigation notice requirement and opportunity to cure only became operative when the construction professionals in question had given prior written notice to the homeowner of the requirement. The Supreme Court cured the situation created by the Court of Appeals’ opinion that a homeowner was required to provide a notice which was not required at the time of the purchase and which the homeowner had never received written notice specified in the statute.