South Carolina Right to Cure Act
I often tell clients that preparing to file a lawsuit is like preparing to fly a plane – it is important to be deliberate and thorough as you choose your parties, prepare your Complaint, and meet the other elements necessary to ensure that you are set up for success. This is particularly true in the context of a lawsuit based on construction defects in a residence. Here, you must comply with the South Carolina Notice and Opportunity to Cure Construction Dwelling Defects Act, found at S.C. Code Ann. 40-59-810 – 840, more commonly referred to as the Right to Cure Act.
A. What is the Right to Cure Act?
The Right to Cure Act is a product of the South Carolina Legislature, which decided that some construction lawsuits might be avoided if the homeowner was first required to give the contractor notice of the alleged defect and to give that contractor the right to fix, or “cure” the problem.
In general, this is a good idea. A lawsuit is an extreme measure and provides hardships for the defendant and the plaintiff as well. If a matter can be worked out without the need for litigation – whether it’s a construction lawsuit or any other – then that’s always preferable. And this sort of mechanism is particularly useful in the construction context, which involves complexities of building practices, codes, and installation instructions and involves collaboration between trades. I’ve had situations where I intended to include a particular subcontractor as a defendant in a lawsuit, but after that subcontractor responded to my Right to Cure letter and explained the situation, I became convinced that the defect was not the fault of that sub, but another. I therefore did not include the responding sub in the lawsuit.
The steps required by the Act can also lead to some worthwhile information. For example, a contractor or subcontractor responding to a Cure letter may inform you that they sub-ed the work out to others, who should then be named as defendants. A subcontractor might also offer you information that would be useful in your claims against other parties, such as the general contractor.
B. What Does the Right to Cure Act Apply To?
The Right to Cure Act applies to any homeowner making a claim against a contractor, subcontractor, supplier, or design professional concerning a defect in the design, construction, condition, or sale of a dwelling. That also includes the remodel of a dwelling.
Notably, the Act does not apply to every residence, but does include single-family homes, duplexes, and even multi-family units, as long as the multi-family unit does not exceed sixteen units and three stories in height.
C. How Does the Right to Cure Act Work?
As I mentioned, the point of the Act is to promote dialogue and resolution prior to a lawsuit being filed. The Act therefore requires that, at least 90 days prior to filing a lawsuit, the claimant must send a written notice, via Certified Mail, to the contractor (or subcontractor, supplier, etc.). The notice must state that the claimant believes he or she has a claim against the contractor for construction defects, must set forth the defects in reasonable detail, and lay out the results of the defect, if known.
The contractor then has 30 days from the receipt of the notice to elect to inspect the property, offer to cure, or deny the claims.
D. What If I Don’t Comply?
Like a number of laws, the Right to Cure Act contradicts itself at times. For one thing, the Act states both that the claimant “shall” send the notice at least 90 days prior to filing suit but also provides that if a lawsuit is filed before the notice is sent, then the contractor’s attorney may make a motion to stay the case until the homeowner has complied. The Supreme Court of South Carolina considered this conflict and determined that a lawsuit may be filed before the notice is sent, but it may then be stayed.
E. What If I Don’t Want the Contractor to Try to Fix the Problem?
Many of my clients balk at the idea of sending out a Right to Cure notice. After all, the contractor in question screwed up the job to begin with. Why would a homeowner want to let him or her back on the site? Here, it is worth noting that the Right to Cure Act affords the contractor the opportunity to inspect and to offer to cure, but does not require the homeowner to accept. Consequently, the homeowner can reject the contractor’s offer to fix the issues or might choose to counter with a proposal of his or her own. For example, I often propose that any remedial work be done with oversight by a construction expert of my client’s choice, which cost is to be borne by the contractor. In this way, the issues can be resolved without litigation and my client can have assurance that the work is done correctly.
F. Special Considerations
If you believe you have claims for construction defects, it is important to talk to a lawyer before doing work to fix the problems. This is because some courts have held that if a homeowner fixes the problems before sending a notice, then it is impossible for the homeowner to comply with the Right to Cure Act, and the claims are invalid. This is not settled law in South Carolina, but it is important to avoid this issue.
The Right to Cure Act is a hurdle to a construction defect action, but is also a law that can be used to a homeowner’s advantage. If you think you have a construction defect claim, reach out to a lawyer to determine the best way to proceed.