Cal. Civ. Code § 895 et seq.; McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241
Construction defect: you have to let them try to fix it first
A claim in California superior courts · Last verified August 26, 2026
California rebuilt residential construction defect law in 2002, and the result is unlike anything else in the state's civil practice.
The Right to Repair Act sets out the standards a new home must meet — hundreds of them, function by function — and makes a violation of a standard actionable without proof of any resulting damage. That is a substantial advantage over the common law, which generally required actual injury first.
In exchange, the builder gets to try to fix it. Before a homeowner may sue, they must give written notice and allow the builder to inspect and offer a repair. The procedure is not optional, and it is not avoided by pleading around the Act.
What the claim is
A residential dwelling was built defectively, and the defect violates one of the statutory standards.
The recurring problems: water intrusion through roofs, windows, decks, or exterior walls; foundation movement and soil issues; plumbing and drainage failures; structural inadequacy; defective stucco, framing, or waterproofing; mould resulting from any of the above.
Where the right comes from
Civil Code § 895 et seq., enacted by SB 800 in 2002 and universally called the Right to Repair Act.
It applies to new residential units sold on or after January 1, 2003. Older homes, and most commercial construction, remain under the common law.
Civil Code § 896 contains the standards — a long, function-by-function list covering water issues, structural issues, soil issues, fire protection, plumbing and sewer, electrical, and other areas.
Civil Code § 910 and following contain the pre-litigation procedure.
What a plaintiff has to prove
- The dwelling is a new residential unit within the Act.
- The construction violates one of the § 896 standards.
- The plaintiff is the homeowner or an association with standing.
Damage is not an element under the Act, and that is its central advantage. A violation of a standard is actionable in itself — a homeowner does not have to wait for the water intrusion to rot the framing before suing.
Some standards carry their own express time limits. The Act sets specific periods for particular components — shorter for some finishes and systems, longer for structural and water issues — and those are built into § 896 itself rather than supplied by a general limitations statute.
There is no CACI series specific to the Act, and the general construction and negligence instructions are adapted.
The Act is the exclusive remedy — McMillin
This was contested for years and is now settled.
In McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, the Supreme Court held the Right to Repair Act provides the near-exclusive remedy for construction defect claims seeking economic loss and property damage in covered residential construction — and that a homeowner must comply with its pre-litigation procedures even when pleading only common law causes of action.
Pleading negligence and breach of warranty instead of the Act does not avoid the Act. That was the workaround McMillin closed.
What remains outside the Act: claims for personal injury, claims for breach of an express contract or express warranty, and fraud. Those retain their own remedies and are not subject to the Act's exclusivity — which is why they are pleaded whenever the facts support them.
What has to happen before you file — the notice and repair procedure
Civil Code § 910 and following, and this is the heart of the claim.
1. Written notice. The homeowner serves the builder with written notice of the claim, describing the claimed violations in reasonable detail.
2. Acknowledgement and inspection. The builder must acknowledge within a statutory period and may inspect and test the alleged defect, with a second inspection available in some circumstances.
3. Offer to repair. The builder may offer to repair, and must include a timeline and the identity of the contractors who will perform the work. The homeowner may request a different contractor from a list.
4. Repair, or the right to sue. If the builder repairs, the process may end there. If the builder fails to acknowledge, fails to inspect, fails to offer a repair, or fails to complete the repair properly, the homeowner is released from the procedure and may file suit.
Character: a mandatory claim-processing requirement — and one with an unusual enforcement mechanism. The Act's own text provides that a builder's failure to comply with its obligations releases the homeowner from the requirements, so the gate opens automatically when the builder does not walk through it.
The consequence of the homeowner skipping it is a stay, not a dismissal. A court will typically stay the action until the procedure is completed rather than throw the case out — but a stay in a construction case is expensive and can cost a season of remediation work.
Watch for a contractual alternative procedure. The Act permits a builder to adopt its own non-adversarial procedure in the sales contract, which then replaces the statutory one. Read the purchase agreement before serving anything — many builders have done this, and serving the wrong notice starts nothing.
Who can be sued — and who can sue
The builder, and — subject to the Act's allocation provisions — general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals.
Homeowners, including subsequent purchasers, since the standards run with the dwelling.
Homeowners associations may sue for defects in common areas, subject to their own procedural requirements, which include member notice and voting obligations that should be checked before filing.
Common defenses
No violation of a standard — the merits.
The homeowner's failure to follow the pre-litigation procedure, producing a stay.
Unreasonable failure to maintain, which the Act expressly recognises. A homeowner who did not maintain the property, or who failed to follow the maintenance recommendations provided at sale, faces a reduction or defeat of the claim on that basis.
Alteration by the homeowner or a third party.
Ordinary wear and tear, and the passage of the component-specific time limits.
The Act's own affirmative defenses, which are set out in the statute and include the homeowner's failure to allow reasonable access for repair.
The statutory periods, including the outer limit on the Act and the component-specific limits.
The claim falls outside the Act, argued by plaintiffs to escape the exclusivity — asserting personal injury, fraud, or breach of an express contract.
What the claim pays
The reasonable cost of repairing the violation, which is the core measure.
The reasonable cost of repairing damage caused by the repair itself, and the cost of removing and replacing improvements to access the defect.
Relocation and storage costs while repairs are performed.
Lost business income where the home was used for a business.
Reduction in market value, but only where the repair cannot restore the property — a limit that prevents a diminution claim from being stacked on a repair claim.
Investigative costs, including the expert costs of identifying the defect, which are substantial in these cases and expressly recoverable.
Not personal injury damages under the Act — those are pursued outside it.
Attorney's fees only if a contract provides them, with Civil Code § 1717 making a one-sided clause mutual. The Act itself does not create a fee award, which is a significant difference from California's consumer statutes.
Jury trial: yes.
What people get wrong
"I'll plead negligence to avoid the Act." McMillin forecloses that. The pre-litigation procedure applies even to common law claims for covered residential construction.
"I have to wait for actual damage before suing." Not under the Act. A violation of a § 896 standard is actionable without resulting damage — one of its main advantages.
"I'll send a demand letter and then sue." The notice must comply with the statutory requirements, and you must allow the inspection and repair process to run.
"They offered to repair, so I have to accept." You must allow the process. Whether the repair is adequate is a separate question, and a failed or incomplete repair releases you from the procedure.
"The Act covers my whole case." It covers economic loss and property damage. Personal injury, fraud, and express contract claims remain outside it.
"My house is thirty years old, so this applies." The Act applies to units sold on or after January 1, 2003. Older homes are governed by the common law.
"I'll recover my attorney's fees." Only if your purchase contract provides for them.
Where it came from
The Act was a legislative settlement of a decade-long conflict.
The trigger was Aas v. Superior Court (2000) 24 Cal.4th 627, in which the Supreme Court held the economic loss rule barred recovery in negligence for construction defects that had not yet caused property damage or injury. The practical result was that a homeowner with a defect they could see and document had no claim until it broke something.
Homeowners' groups found that intolerable. Builders had their own complaint — that construction defect litigation had become a routine cost of building in California, driven by claims filed without notice and litigated without any opportunity to fix the problem.
SB 800 gave each side what it most wanted. Homeowners got the standards, actionable without proof of resulting damage — reversing Aas by statute. Builders got the notice-and-repair procedure, and a chance to fix defects before litigation.
The bargain nearly came apart over exclusivity. For a decade after the Act, some courts held a homeowner could bypass the procedure by pleading common law claims, which would have given homeowners the statutory standards and the common law route. McMillin (2018) closed that, restoring the trade the Legislature made: the standards come with the procedure attached.
Common questions
Do I have to notify the builder before suing?
Yes. The Right to Repair Act requires written notice and an opportunity to inspect and repair, and McMillin holds the requirement applies even if you plead only common law claims.
Can I avoid the Act by suing for negligence instead?
No. That was the workaround the Supreme Court closed in 2018. For covered residential construction, the Act's procedures apply regardless of how the complaint is captioned.
Do I have to wait until the defect causes damage?
No — and this is the Act's main advantage. A violation of a statutory standard is actionable without any resulting damage, which reversed the rule that had applied before 2003.
What if the builder ignores my notice?
Their failure to acknowledge, inspect, offer a repair, or complete one properly releases you from the procedure, and you may file suit.
Does the Act apply to my older house?
Only to residential units sold on or after January 1, 2003. Older homes remain under the common law.
Can I recover my attorney's fees?
Only if your purchase contract provides for them — and if it does, Civil Code § 1717 makes the clause mutual. The Act itself creates no fee award.