RCW 64.50: Builders, Give Defect Notice Before Work Begins

In Washington, homeowners (and associations)[1] of newly constructed or substantially remodeled[2] residential projects[3] have a unique vehicle to sue builders.[4] Under the Construction Defect Claims Act (RCW 64.50), for up to six years homeowners can sue builders for damages arising from alleged construction defects. Homeowners often rely on these Defect Claims after the common one- and two-year builder warranties expire.

Builders may find this law increases their general risk. However, builders can boost their protection by including an RCW 64.50 Notice provision in their contracts with homeowners before beginning work.

This contract notice provision, when done correctly, would require homeowners to serve the builder with written notice (1) that the homeowner asserts a construction defect claim against the builder and (2) shall describe the claim in reasonable detail sufficient to determine the general nature of the defect no later than 45 days before filing a lawsuit.[5] The Defect Claims Act then provides the builder with several response options intended to resolve the dispute without a lawsuit.  Note: Builders, your best response options must be exercised within 14 days of the homeowner’s written notice—if you receive notice of a Defect Claim, it is recommended you seek immediate counsel.

What RCW 64.50 notice does a builder need in their contract? The Construction Defect Claims Act is clear, RCW 64.50.050 provides that upon entering into the sale, construction or remodel project, the underlying contract shall include “conspicuous” notice that is substantially in the following form:

CHAPTER 64.50 RCW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST THE SELLER OR BUILDER OF YOUR HOME. FORTY-FIVE DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE SELLER OR BUILDER A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR SELLER OR BUILDER THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE BUILDER OR SELLER. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.

If builders do not include written RCW 64.50 notice in the sale, construction or remodel contract, then a homeowner is likely not required to provide any notice to the builder—and the homeowner can immediately proceed with a lawsuit.

In the 2006 opinion, Lakemont Ridge Homeowners Association v. Lakemont Ridge Limited Partnership, the Washington Supreme Court examined an issue where a condominium association initiated a Defect Claims lawsuit against builders without providing the builders with notice of the alleged defects 45 days before starting the lawsuit. In that case, the builders did not provide RCW 64.50 notice in their contracts, and the Washington Supreme Court found that “if the ‘construction professional fails to give the homeowner notice,’ the Association’s action cannot be precluded or barred for failing to give prelitigation notice.”[6] 

While the Washington Supreme Court’s finding in Lakemont Ridge additionally factored the timing of RCW 64.50’s enactment (it was enacted between the time the construction began and the time the lawsuit was brought), the principle that builders must provide RCW 64.50 notice in their contracts to boost their protection against Construction Defect Claims is reinforced by Washington Court of Appeals’ decisions like Khalighi v. Harvey (2010) and Babbitt v. Kingsgate Ridge Manor Ass’n (2018).

If you are a builder or construction professional who has received a Construction Defect Claim Notice or are preparing to begin a new residential project or remodel, please feel free to call our firm. Our lawyers litigate and negotiate RCW 64.50 Construct Defect Claims and draft contracts that include RCW 64.50 Notice provisions. Please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.

BERESFORD BOOTH has made this content available to the general public for informational purposes only. The information on this site is not intended to convey legal opinions or legal advice.

[1] “Homeowner” means: (a) Any person, company, firm, partnership, corporation, or association who contracts with a construction professional for the construction, sale, or construction and sale of a residence; and (b) an “association” as defined in this section. “Homeowner” includes, but is not limited to, a subsequent purchaser of a residence from any homeowner. RCW 64.50.010(6).

[2] “Substantial remodel” means a remodel of a residence, for which the total cost exceeds one-half of the assessed value of the residence for property tax purposes at the time the contract for the remodel work was made. RCW 64.50.010(9).

[3] Projects or “Residence” means a single-family house, duplex, triplex, quadraplex, or a unit in a multiunit residential structure in which title to each individual unit is transferred to the owner under a condominium or cooperative system, and shall include common elements as defined in RCW 64.34.020 and common areas as defined in RCW 64.38.010(4). RCW 64.50.010(7).

[4] Builders or “Construction professional” means an architect, builder, builder vendor, contractor, subcontractor, engineer, or inspector, including, but not limited to, a dealer as defined in RCW 64.34.020 and a declarant as defined in RCW 64.34.020, performing or furnishing the design, supervision, inspection, construction, or observation of the construction of any improvement to real property, whether operating as a sole proprietor, partnership, corporation, or other business entity. RCW 64.50.010(5).

[5] See RCW 64.50.020(1)(a).

[6] Lakemont Ridge Homeowners Ass’n v. Lakemont Ridge Ltd. P’ship, 156 Wn.2d 696, 702, 131 P. 3d 905 (2006).