99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB3744

 

Introduced , by Rep. Ron Sandack

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Notice and Opportunity to Repair Act. Contains legislative findings and defines terms. Requires the service of notice to a construction professional of the complained-of defect in the construction by the homeowner prior to commencement of a lawsuit. Allows the professional to make an offer of repair or settlement and to rescind this offer if the claimant fails to respond within 30 days. Requires the claimant to file with the court a list of known construction defects. Directs the professional to provide a statutory notice to the homeowner upon the execution of a contract.


LRB099 07357 HEP 27471 b

 

 

A BILL FOR

 

HB3744LRB099 07357 HEP 27471 b

1    AN ACT concerning real estate.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Notice and Opportunity to Repair Act.
 
6    Section 5. Findings; purpose.
7    (a) The General Assembly finds that limited changes in the
8law are necessary and appropriate concerning actions claiming
9damages, indemnity, or contribution in connection with alleged
10residential construction defects.
11    (b) It is the purpose of this Act to implement the changes
12identified in subsection (a) while preserving adequate rights
13and remedies for property owners who bring and maintain actions
14alleging residential construction defects.
 
15    Section 10. Definitions. In this Act:
16    "Action" means any civil lawsuit or action in contract or
17tort for damages or indemnity brought against a construction
18professional which asserts a claim, whether by complaint,
19counterclaim, or cross-claim, for the damage or loss of the use
20of real or personal property caused by a defect in the
21construction of a residence or in the substantial remodel of a
22residence. "Action" does not include any civil action in tort

 

 

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1alleging personal injury or wrongful death to a person or
2persons resulting from a construction defect.
3    "Claimant" means a homeowner who asserts a claim against a
4construction professional concerning a defect in the
5construction of a residence or in the substantial remodel of a
6residence.
7    "Construction professional" means any person performing or
8furnishing the design, supervision, inspection, construction,
9or observation of the construction of any improvement to real
10property, whether operating as a sole proprietor, partnership,
11corporation, or other business entity, and includes, but is not
12limited to, an architect, builder, builder-vendor, contractor,
13subcontractor, engineer, or inspector.
14    "Homeowner" means any person, company, firm, partnership,
15corporation, or association who contracts with a construction
16professional for the construction, sale, or construction and
17sale of a residence. "Homeowner" includes, but is not limited
18to, a subsequent purchaser of a residence from any homeowner.
19    "Residence" means a single family house, duplex, triplex,
20quadraplex, or a unit in a multiunit residential structure in
21which title to each individual unit is transferred to the owner
22under the Common Interest Community Association Act or the
23Condominium Property Act and includes general and limited
24common elements as defined in the Condominium Property Act.
25    "Serve" or "service" means personal service or delivery by
26certified mail to the last known address of the addressee.

 

 

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1    "Substantial remodel" means a remodel of a residence for
2which the total cost exceeds the maximum amount for a small
3claim under Supreme Court Rules.
 
4    Section 15. Applicability.
5    (a) This Act:
6        (1) applies to any claim that arises before, on, or
7    after July 15, 2016, as the result of a construction
8    defect, except a claim for personal injury or wrongful
9    death, if the claim is the subject of an action commenced
10    on or after July 15, 2016; and
11        (2) prevails over any conflicting law otherwise
12    applicable to the claim or cause of action.
13    (b) This Act does not:
14        (1) bar or limit any defense otherwise available except
15    as otherwise provided in this Act; or
16        (2) create a new theory upon which liability may be
17    based.
18    (c) This Act does not apply if a construction professional
19certifies to a claimant that immediate repairs are necessary in
20order to avoid an imminent health or safety problem or in order
21to avoid material additional damage to the property.
 
22    Section 20. Notice of claim of construction defects;
23response by construction professional.
24    (a) In every construction defect action brought against a

 

 

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1construction professional, the claimant shall, before filing
2an action, serve written notice of claim on the construction
3professional. The notice of claim shall state that the claimant
4asserts a construction defect claim against the construction
5professional and shall describe the claim in reasonable detail
6sufficient to determine the general nature of the defect.
7    (b) Within 21 days after service of the notice of claim,
8the construction professional shall serve a written response on
9the claimant by registered mail or personal service. The
10written response shall:
11        (1) propose to inspect the residence that is the
12    subject of the claim and to complete the inspection within
13    a specified time frame and shall include a statement that
14    the construction professional will, based on the
15    inspection, offer to remedy the defect, compromise by
16    payment, or dispute the claim;
17        (2) offer to compromise and settle the claim by
18    monetary payment without inspection, which may include,
19    but need not be limited to, an express offer to purchase
20    the claimant's residence that is the subject of the claim
21    and to pay the claimant's reasonable relocation costs; or
22        (3) state that the construction professional disputes
23    the claim and will neither remedy the construction defect
24    nor compromise and settle the claim.
25    (c) If the construction professional disputes the claim or
26does not respond to the claimant's notice of claim within the

 

 

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1time stated in subsection (b), the claimant may bring an action
2against the construction professional for the claim described
3in the notice of claim without further notice.
4    If the claimant rejects the inspection proposal or the
5settlement offer made by the construction professional
6pursuant to subsection (b), the claimant shall serve written
7notice of the claimant's rejection on the construction
8professional. After service of the rejection, the claimant may
9bring an action against the construction professional for the
10construction defect claim described in the notice of claim. If
11the construction professional has not received from the
12claimant, within 30 days after the claimant's receipt of the
13construction professional's response, either an acceptance or
14rejection of the inspection proposal or settlement offer, then
15at any time thereafter the construction professional may
16terminate the proposal or offer by serving written notice to
17the claimant, and the claimant may thereafter bring an action
18against the construction professional for the construction
19defect claim described in the notice of claim.
20    (d) If the claimant elects to allow the construction
21professional to inspect the residence in accordance with the
22construction professional's proposal pursuant to subdivision
23(b)(1) of this Section, the claimant shall provide the
24construction professional and its contractors or other agents
25reasonable access to the claimant's residence during normal
26working hours to inspect the premises and the claimed defect.

 

 

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1    (e) Within 14 days following completion of the inspection,
2the construction professional shall serve on the claimant:
3        (1) a written offer to remedy the construction defect
4    at no cost to the claimant, including a report of the scope
5    of the inspection, the findings and results of the
6    inspection, a description of the additional construction
7    necessary to remedy the defect described in the claim, and
8    a timetable for the completion of the construction;
9        (2) a written offer to compromise and settle the claim
10    by monetary payment which may include, but need not be
11    limited to, an express offer to purchase the claimant's
12    residence that is the subject of the claim and to pay the
13    claimant's reasonable relocation costs; or
14        (3) a written statement that the construction
15    professional will not proceed further to remedy the defect.
16    (f) If the construction professional does not proceed
17further to remedy the construction defect within the agreed
18timetable, or if the construction professional fails to comply
19with the provisions of subsection (e), the claimant may bring
20an action against the construction professional for the claim
21described in the notice of claim without further notice.
22    (g) If the claimant rejects the offer made by the
23construction professional pursuant to subdivision (e)(1) or
24(e)(2) to either remedy the construction defect or compromise
25and settle the claim by monetary payment, the claimant shall
26serve written notice of the claimant's rejection on the

 

 

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1construction professional. After service of the rejection
2notice, the claimant may bring an action against the
3construction professional for the construction defect claim
4described in the notice of claim. If the construction
5professional has not received from the claimant, within 30 days
6after the claimant's receipt of the construction
7professional's response, either an acceptance or rejection of
8the offer made pursuant to subdivision (e)(1) or (e)(2), then
9at any time thereafter the construction professional may
10terminate the offer by serving written notice to the claimant.
11    (h) Any claimant accepting the offer of a construction
12professional to remedy the construction defect pursuant to
13subdivision (e)(1) of this Section shall do so by serving the
14construction professional with a written notice of acceptance
15within a reasonable time period after receipt of the offer, and
16no later than 30 days after receipt of the offer. The claimant
17shall provide the construction professional and its
18contractors or other agents reasonable access to the claimant's
19residence during normal working hours to perform and complete
20the construction by the timetable stated in the offer. The
21claimant and construction professional may, by written mutual
22agreement, alter the extent of construction or the timetable
23for completion of construction stated in the offer for any
24reason, including, but not limited to, the repair of additional
25defects.
26    (i) Any action commenced by a claimant prior to compliance

 

 

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1with the requirements of this Section is subject to dismissal
2without prejudice and shall not be recommenced until the
3claimant has complied with the requirements of this Section.
4    (j) Nothing in this Section may be construed to prevent a
5claimant from commencing an action on the construction defect
6claim described in the notice of claim if the construction
7professional fails to perform the construction agreed upon,
8fails to remedy the defect, or fails to perform by the
9timetable agreed upon pursuant to subdivision (b)(1) or
10subsection (h) of this Section.
11    (k) Prior to commencing any action alleging a construction
12defect, or after the dismissal of any action without prejudice
13pursuant to subsection (i), the claimant may amend the notice
14of claim to include construction defects discovered after the
15service of the original notice of claim. The claimant must
16otherwise comply with the requirements of this Section for the
17additional claims. The service of an amended notice of claim
18shall relate back to the original notice of claim for purposes
19of tolling statutes of limitations and repose. Claims for
20defects discovered after the commencement or recommencement of
21an action may be added to the action only after providing
22notice to the construction professional of the defect and
23allowing for a response under subsection (b).
 
24    Section 25. Effect of non-compliance.
25    (a) Any sums paid under a homeowner's warranty pursuant to

 

 

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1a specific claim made with respect to the alleged defect, other
2than sums paid in satisfaction of claims that are collateral to
3any coverage issued to or by the contractor, shall be deducted
4from any recovery.
5    (b) If a contractor fails to comply with the requirements
6of this Act, the claimant is not obligated to further comply
7with the provisions of this Act and may commence an action
8without satisfying any other requirement of this Act; none of
9the provisions of this Act shall be applied to the detriment of
10the claimant.
 
11    Section 30. Construction defect list.
12    (a) In every action brought against a construction
13professional, the claimant, including a construction
14professional asserting a claim against another construction
15professional, shall file with the court and serve on the
16defendant a list of known construction defects in accordance
17with this Section.
18    (b) The list of known construction defects shall contain a
19description of the construction that the claimant alleges to be
20defective. The list of known construction defects shall be
21filed with the court and served on the defendant within 30 days
22after the commencement of the action or within such longer
23period as the court in its discretion may allow.
24    (c) The list of known construction defects may be amended
25by the claimant to identify additional construction defects as

 

 

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1they become known to the claimant.
2    (d) The list of known construction defects shall specify,
3to the extent known to the claimant, the construction
4professional responsible for each alleged defect identified by
5the claimant.
6    (e) If a subcontractor or supplier is added as a party to
7an action under this Section, the party making the claim
8against the subcontractor or supplier shall serve on the
9subcontractor or supplier the list of construction defects in
10accordance with this Section within 30 days after service of
11the complaint against the subcontractor or supplier or within
12such period as the court in its discretion may allow.
 
13    Section 35. Mandatory notice.
14    (a) The construction professional shall provide notice to
15each homeowner, upon entering into a contract for sale,
16construction, or substantial remodel of a residence, of the
17construction professional's right to offer to cure
18construction defects before a homeowner may commence
19litigation against the construction professional. The notice
20shall be conspicuous and may be included as part of the
21underlying contract signed by the homeowner.
22    (b) The notice required by subsection (a) shall be in
23substantially the following form:
 
24    SECTIONS 1 THROUGH 30 OF THE NOTICE AND OPPORTUNITY TO

 

 

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1    REPAIR ACT CONTAIN IMPORTANT REQUIREMENTS YOU MUST FOLLOW
2    BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION
3    AGAINST THE CONSTRUCTION PROFESSIONALS INVOLVED IN THE
4    CONSTRUCTION OF YOUR HOME. BEFORE YOU FILE YOUR LAWSUIT,
5    YOU MUST DELIVER TO THE SELLER OR BUILDER A WRITTEN NOTICE
6    OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND
7    PROVIDE THE CONSTRUCTION PROFESSIONAL THE OPPORTUNITY TO
8    MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT
9    OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONSTRUCTION
10    PROFESSIONAL. THERE ARE STRICT DEADLINES AND PROCEDURES
11    UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR
12    ABILITY TO FILE A LAWSUIT.
 
13    (c) This Act does not preclude or bar any action if notice
14is not given to the homeowner as required by this Section.
 
15    Section 40. No effect on other rights. Nothing in this Act
16shall be construed to hinder or otherwise affect the
17employment, agency, or contractual relationship between
18homeowners and construction professionals during the process
19of construction or remodeling and does not preclude the
20termination of those relationships as allowed under the law.
21Nothing in this Act negates or otherwise restricts a
22construction professional's right to access or inspection
23provided by law, covenant, easement, or contract.
 

 

 

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1    Section 45. Tolling of statutes of limitations and repose.
2If a written notice of claim is served under Section 30 of this
3Act within the time prescribed for the filing of an action
4under this Act, the statutes of limitations for
5construction-related claims are tolled until 75 days after the
6period of time during which the filing of an action is barred
7under the applicable statute of limitations.