Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1152

Introduced by Assembly Member Frazier

February 27, 2015

An act to amend Section begin delete 895 end delete begin insert 896 end insert of the Civil Code, relating to construction defects.

LEGISLATIVE COUNSEL’S DIGEST

AB 1152, as amended, Frazier. Construction begin delete defects. end delete begin insert defects: prelitigation procedures: exclusive remedy. end insert

Existing law regulates actions seeking recovery on construction defects, as specified, on original construction intended to be sold as an individual dwelling begin delete unit. Existing law defines certain terms for these purposes. end delete begin insert purchased new after January 1, 2003. Existing law provides that general contractors, subcontractors, material suppliers, product manufacturers, and design professionals may be liable for damages for construction defects if they caused, or contributed to, the violation of a particular standard as the result of a breach of contract or through negligence. Existing law also establishes certain prelitigation procedures for both the homeowner and defendants to engage in to attempt to resolve the claim prior to filing a lawsuit for construction defects, and also establishes the parameters of a legal action seeking recovery for construction defects. end insert

This bill would begin delete make nonsubstantive changes to these provisions end delete begin insert establish these provisions as the sole and exclusive remedy available for claims seeking recovery on construction defects, as specified end insert .

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 896 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

896.  

In any action seeking recovery of damages arising out of,
or related to deficiencies in, the residential construction, design,
specifications, surveying, planning, supervision, testing, or
observation of construction, a builder, and to the extent set forth
in Chapter 4 (commencing with Section 910), a general contractor,
subcontractor, material supplier, individual product manufacturer,
or design professional, shall, except as specifically set forth in this
title, be liable for, and the claimant’s claims or causes of action
shall be limited to violation of, the following standards, except as
specifically set forth in this title. This title applies to original
construction intended to be sold as an individual dwelling begin delete unit. end delete
begin insert unit and shall serve as the sole and exclusive remedy for any action
seeking recovery for damages as described in this section. end insert As to
condominium conversions, this title does not apply to or does not
supersede any other statutory or common law.

(a) With respect to water issues:

(1) A door shall not allow unintended water to pass beyond,
around, or through the door or its designed or actual moisture
barriers, if any.

(2) Windows, patio doors, deck doors, and their systems shall
not allow water to pass beyond, around, or through the window,
patio door, or deck door or its designed or actual moisture barriers,
including, without limitation, internal barriers within the systems
themselves. For purposes of this paragraph, “systems” include,
without limitation, windows, window assemblies, framing,
substrate, flashings, and trim, if any.

(3) Windows, patio doors, deck doors, and their systems shall
not allow excessive condensation to enter the structure and cause
damage to another component. For purposes of this paragraph,
“systems” include, without limitation, windows, window
assemblies, framing, substrate, flashings, and trim, if any.

(4) Roofs, roofing systems, chimney caps, and ventilation
components shall not allow water to enter the structure or to pass
beyond, around, or through the designed or actual moisture barriers,
including, without limitation, internal barriers located within the
systems themselves. For purposes of this paragraph, “systems”
include, without limitation, framing, substrate, and sheathing, if
any.

(5) Decks, deck systems, balconies, balcony systems, exterior
stairs, and stair systems shall not allow water to pass into the
adjacent structure. For purposes of this paragraph, “systems”
include, without limitation, framing, substrate, flashing, and
sheathing, if any.

(6) Decks, deck systems, balconies, balcony systems, exterior
stairs, and stair systems shall not allow unintended water to pass
within the systems themselves and cause damage to the systems.
For purposes of this paragraph, “systems” include, without
limitation, framing, substrate, flashing, and sheathing, if any.

(7) Foundation systems and slabs shall not allow water or vapor
to enter into the structure so as to cause damage to another building
component.

(8) Foundation systems and slabs shall not allow water or vapor
to enter into the structure so as to limit the installation of the type
of flooring materials typically used for the particular application.

(9) Hardscape, including paths and patios, irrigation systems,
landscaping systems, and drainage systems, that are installed as
part of the original construction, shall not be installed in such a
way as to cause water or soil erosion to enter into or come in
contact with the structure so as to cause damage to another building
component.

(10) Stucco, exterior siding, exterior walls, including, without
limitation, exterior framing, and other exterior wall finishes and
fixtures and the systems of those components and fixtures,
including, but not limited to, pot shelves, horizontal surfaces,
columns, and plant-ons, shall be installed in such a way so as not
to allow unintended water to pass into the structure or to pass
beyond, around, or through the designed or actual moisture barriers
of the system, including any internal barriers located within the
system itself. For purposes of this paragraph, “systems” include,
without limitation, framing, substrate, flashings, trim, wall
assemblies, and internal wall cavities, if any.

(11) Stucco, exterior siding, and exterior walls shall not allow
excessive condensation to enter the structure and cause damage
to another component. For purposes of this paragraph, “systems”
include, without limitation, framing, substrate, flashings, trim,
wall assemblies, and internal wall cavities, if any.

(12) Retaining and site walls and their associated drainage
systems shall not allow unintended water to pass beyond, around,
or through its designed or actual moisture barriers including,
without limitation, any internal barriers, so as to cause damage.
This standard does not apply to those portions of any wall or
drainage system that are designed to have water flow beyond,
around, or through them.

(13) Retaining walls and site walls, and their associated drainage
systems, shall only allow water to flow beyond, around, or through
the areas designated by design.

(14) The lines and components of the plumbing system, sewer
system, and utility systems shall not leak.

(15) Plumbing lines, sewer lines, and utility lines shall not
corrode so as to impede the useful life of the systems.

(16) Sewer systems shall be installed in such a way as to allow
the designated amount of sewage to flow through the system.

(17) Showers, baths, and related waterproofing systems shall
not leak water into the interior of walls, flooring systems, or the
interior of other components.

(18)  The waterproofing system behind or under ceramic tile
and tile countertops shall not allow water into the interior of walls,
flooring systems, or other components so as to cause damage.
Ceramic tile systems shall be designed and installed so as to deflect
intended water to the waterproofing system.

(b) With respect to structural issues:

(1) Foundations, load bearing components, and slabs, shall not
contain significant cracks or significant vertical displacement.

(2) Foundations, load bearing components, and slabs shall not
cause the structure, in whole or in part, to be structurally unsafe.

(3) Foundations, load bearing components, and slabs, and
underlying soils shall be constructed so as to materially comply
with the design criteria set by applicable government building
codes, regulations, and ordinances for chemical deterioration or
corrosion resistance in effect at the time of original construction.

(4) A structure shall be constructed so as to materially comply
with the design criteria for earthquake and wind load resistance,
as set forth in the applicable government building codes,
regulations, and ordinances in effect at the time of original
construction.

(c) With respect to soil issues:

(1) Soils and engineered retaining walls shall not cause, in whole
or in part, damage to the structure built upon the soil or engineered
retaining wall.

(2) Soils and engineered retaining walls shall not cause, in whole
or in part, the structure to be structurally unsafe.

(3) Soils shall not cause, in whole or in part, the land upon which
no structure is built to become unusable for the purpose represented
at the time of original sale by the builder or for the purpose for
which that land is commonly used.

(d) With respect to fire protection issues:

(1) A structure shall be constructed so as to materially comply
with the design criteria of the applicable government building
codes, regulations, and ordinances for fire protection of the
occupants in effect at the time of the original construction.

(2) Fireplaces, chimneys, chimney structures, and chimney
termination caps shall be constructed and installed in such a way
so as not to cause an unreasonable risk of fire outside the fireplace
enclosure or chimney.

(3) Electrical and mechanical systems shall be constructed and
installed in such a way so as not to cause an unreasonable risk of
fire.

(e) With respect to plumbing and sewer issues:

Plumbing and sewer systems shall be installed to operate properly
and shall not materially impair the use of the structure by its
inhabitants. However, no action may be brought for a violation of
this subdivision more than four years after close of escrow.

(f) With respect to electrical system issues:

Electrical systems shall operate properly and shall not materially
impair the use of the structure by its inhabitants. However, no
action shall be brought pursuant to this subdivision more than four
years from close of escrow.

(g) With respect to issues regarding other areas of construction:

(1) Exterior pathways, driveways, hardscape, sidewalls,
sidewalks, and patios installed by the original builder shall not
contain cracks that display significant vertical displacement or that
are excessive. However, no action shall be brought upon a violation
of this paragraph more than four years from close of escrow.

(2) Stucco, exterior siding, and other exterior wall finishes and
fixtures, including, but not limited to, pot shelves, horizontal
surfaces, columns, and plant-ons, shall not contain significant
cracks or separations.

(3) (A) To the extent not otherwise covered by these standards,
manufactured products, including, but not limited to, windows,
doors, roofs, plumbing products and fixtures, fireplaces, electrical
fixtures, HVAC units, countertops, cabinets, paint, and appliances
shall be installed so as not to interfere with the products’ useful
life, if any.

(B) For purposes of this paragraph, “useful life” means a
representation of how long a product is warranted or represented,
through its limited warranty or any written representations, to last
by its manufacturer, including recommended or required
maintenance. If there is no representation by a manufacturer, a
builder shall install manufactured products so as not to interfere
with the product’s utility.

(C) For purposes of this paragraph, “manufactured product”
means a product that is completely manufactured offsite.

(D) If no useful life representation is made, or if the
representation is less than one year, the period shall be no less than
one year. If a manufactured product is damaged as a result of a
violation of these standards, damage to the product is a recoverable
element of damages. This subparagraph does not limit recovery if
there has been damage to another building component caused by
a manufactured product during the manufactured product’s useful
life.

(E) This title does not apply in any action seeking recovery
solely for a defect in a manufactured product located within or
adjacent to a structure.

(4) Heating shall be installed so as to be capable of maintaining
a room temperature of 70 degrees Fahrenheit at a point three feet
above the floor in any living space if the heating was installed
pursuant to a building permit application submitted prior to January
1, 2008, or capable of maintaining a room temperature of 68
degrees Fahrenheit at a point three feet above the floor and two
feet from exterior walls in all habitable rooms at the design
temperature if the heating was installed pursuant to a building
permit application submitted on or before January 1, 2008.

(5) Living space air-conditioning, if any, shall be provided in
a manner consistent with the size and efficiency design criteria
specified in Title 24 of the California Code of Regulations or its
successor.

(6) Attached structures shall be constructed to comply with
interunit noise transmission standards set by the applicable
government building codes, ordinances, or regulations in effect at
the time of the original construction. If there is no applicable code,
ordinance, or regulation, this paragraph does not apply. However,
no action shall be brought pursuant to this paragraph more than
one year from the original occupancy of the adjacent unit.

(7) Irrigation systems and drainage shall operate properly so as
not to damage landscaping or other external improvements.
However, no action shall be brought pursuant to this paragraph
more than one year from close of escrow.

(8) Untreated wood posts shall not be installed in contact with
soil so as to cause unreasonable decay to the wood based upon the
finish grade at the time of original construction. However, no action
shall be brought pursuant to this paragraph more than two years
from close of escrow.

(9) Untreated steel fences and adjacent components shall be
installed so as to prevent unreasonable corrosion. However, no
action shall be brought pursuant to this paragraph more than four
years from close of escrow.

(10) Paint and stains shall be applied in such a manner so as not
to cause deterioration of the building surfaces for the length of
time specified by the paint or stain manufacturers’ representations,
if any. However, no action shall be brought pursuant to this
paragraph more than five years from close of escrow.

(11) Roofing materials shall be installed so as to avoid materials
falling from the roof.

(12) The landscaping systems shall be installed in such a manner
so as to survive for not less than one year. However, no action
shall be brought pursuant to this paragraph more than two years
from close of escrow.

(13) Ceramic tile and tile backing shall be installed in such a
manner that the tile does not detach.

(14) Dryer ducts shall be installed and terminated pursuant to
manufacturer installation requirements. However, no action shall
be brought pursuant to this paragraph more than two years from
close of escrow.

(15) Structures shall be constructed in such a manner so as not
to impair the occupants’ safety because they contain public health
hazards as determined by a duly authorized public health official,
health agency, or governmental entity having jurisdiction. This
paragraph does not limit recovery for any damages caused by a
violation of any other paragraph of this section on the grounds that
the damages do not constitute a health hazard.

begin delete

SECTION 1.  

Section 895 of the Civil Code is amended to read:

895.  

(a) “Structure” means a residential dwelling, other
building, or improvement located upon a lot or within a common
area.

(b) “Designed moisture barrier” means an installed moisture
barrier specified in the plans and specifications, contract
documents, or manufacturer’s recommendations.

(c) “Actual moisture barrier” means a component or material,
actually installed, that serves to any degree as a barrier against
moisture, whether or not intended as a barrier against moisture.

(d) “Unintended water” means water that passes beyond, around,
or through a component or the material that is designed to prevent
that passage.

(e) “Close of escrow” means the date of the close of escrow
between the builder and the original homeowner. With respect to
claims by an association, as defined in Section 4080, “close of
escrow” means the date of substantial completion, as defined in
Section 337.15 of the Code of Civil Procedure, or the date the
builder relinquishes control over the association’s ability to decide
whether to initiate a claim under this title, whichever is later.

(f) “Claimant” or “homeowner” includes the individual owners
of single-family homes, individual unit owners of attached
dwellings and, in the case of a common interest development, an
association as defined in Section 4080.

end delete