SENATE BILL 50
56th legislature - STATE OF NEW MEXICO - first session, 2023
INTRODUCED BY
Peter Wirth
AN ACT
RELATING TO CONSTRUCTION; ENACTING THE RIGHT TO REPAIR ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Right to Repair Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Right to Repair Act:
A. "association" means an association organized pursuant to the Condominium Act or the Homeowner Association Act;
B. "construction codes" means building codes enforced by the authority having jurisdiction in which the dwelling is located;
C. "construction defect" means a material deficiency in the construction of a dwelling that is the result of a violation of construction codes applicable to the construction of the dwelling;
D. "construction professional" means a contractor, subcontractor, developer or builder performing the construction of a dwelling;
E. "dwelling" means a single or multifamily housing unit designed for residential use. "Dwelling" includes common areas and improvements that are owned or maintained by an association or members of an association; "dwelling" includes the systems, other components and improvements that are part of a single or multifamily housing unit at the time of construction;
F. "dwelling action" means any legal proceeding involving an alleged construction defect brought by a purchaser against the seller of a dwelling arising out of or related to the construction, condition or sale of the dwelling;
G. "material deficiency" means a deficiency that actually impairs the structural integrity or functionality of a dwelling at the time of the claim;
H. "purchaser" means a person or entity who has purchased a dwelling;
I. "reasonable detail" includes all of the following:
(1) an itemized list that describes each alleged construction defect with sufficient detail to allow a seller or seller's construction professional to identify each alleged construction defect;
(2) the location of each alleged construction defect in each dwelling that is the subject of the notice;
(3) the impairment to a dwelling that has occurred as a result of each alleged construction defect; and
(4) the street address for each dwelling that is the subject of the notice; and
J. "seller" means the party responsible for construction of the dwelling.
SECTION 3. [NEW MATERIAL] NOTICE AND RIGHT TO REPAIR.--
A. A purchaser shall first comply with the provisions of this section before filing a dwelling action. A purchaser shall give written notice by certified mail, return receipt requested, to the seller specifying the reasonable detail of each alleged defect. A seller who receives notice pursuant to this subsection shall promptly forward a copy of the notice to the last known address of each construction professional that the seller reasonably believes is responsible for an alleged defect specified in the notice. The seller's notice to each construction professional may be delivered by electronic means.
B. After receipt of the notice described in Subsection A of this section, the seller and the seller's construction professional may inspect the dwelling to determine the nature and cause of each alleged construction defect and the nature and extent of any repairs or replacements necessary to remedy each alleged construction defect. The purchaser shall ensure the dwelling is made available for inspection during normal working hours not later than ten days after the purchaser receives the seller's and the seller's construction professional's request for an inspection. The seller and the seller's construction professional shall provide reasonable notice to the purchaser before conducting the inspection. The inspection shall be conducted at a reasonable time. The seller and the seller's construction professional may use reasonable measures, including testing, to determine the nature and cause of each alleged construction defect and the nature and extent of any repairs or replacements necessary to remedy each alleged construction defect. The seller's construction professional shall restore the dwelling within sixty days of the testing.
C. Within sixty days after receipt of the notice provided for in Subsection A of this section, the seller shall send to the purchaser, by certified mail, return receipt requested, a good faith written response to the purchaser's notice. The response may:
(1) invoke any alternative dispute resolution requirement;
(2) offer to repair or replace each alleged construction defect or to have each alleged construction defect repaired or replaced by another construction professional chosen by the purchaser at the seller's or seller's construction professional's expense; or
(3) offer to provide monetary compensation to the purchaser.
D. A written offer to repair or replace pursuant to Paragraph (2) of Subsection C of this section shall describe in reasonable detail all repairs or replacements that the seller and the seller's construction professional intend to make or provide to the dwelling and a reasonable estimate of the date by which the repairs or replacements will be made. This subsection does not prohibit the seller from offering monetary compensation or other consideration instead of or in addition to a repair or replacement.
E. The purchaser may accept or reject an offer of monetary compensation or other consideration, other than a repair or replacement, but shall allow the seller or the seller's construction professional the opportunity to make repairs or replacements of each alleged construction defect.
F. The purchaser and seller may negotiate for a release of claims regarding the noticed construction defect if an offer involving monetary compensation or other consideration is accepted or the purchaser is satisfied with the repairs or replacements.
G. If the response provided pursuant to Subsection C of this section includes a notice of intent to repair or replace each alleged construction defect, the purchaser shall allow the seller and the seller's construction professional a reasonable opportunity to repair or replace each alleged construction defect or cause each alleged construction defect to be repaired or replaced as follows:
(1) the purchaser and the seller or the seller's construction professional shall coordinate repairs or replacements within thirty days after the seller's notice of intent to repair or replace was sent pursuant to Subsection C of this section. A construction professional that was not involved in the construction or design of the dwelling resulting in each alleged construction defect and that performs any repair or replacement of the alleged construction defect pursuant to this section is liable to the seller or purchaser who contracted for the contractor's or subcontractor's services only for that construction professional's scope of work;
(2) repairs or replacements shall begin as agreed by the purchaser and the seller or the seller's construction professional, with reasonable efforts to begin repairs or replacements within thirty-five days after the seller's notice of intent to repair or replace was sent pursuant to Subsection C of this section. If a permit is required to perform the repair or replacement, reasonable efforts shall be made to begin repairs or replacements within ten days after receipt of the permit or thirty-five days after the seller's notice of intent to repair or replace was sent pursuant to Subsection C of this section, whichever is later;
(3) all repairs or replacements shall be completed using reasonable care under the circumstances and within a commercially reasonable time frame considering the nature of the repair or replacement, any access issues or unforeseen events that are not caused by the seller or the seller's construction professional;
(4) the purchaser shall provide reasonable access during normal working hours for the repairs or replacements;
(5) the seller is not entitled to a release or waiver of claims solely in exchange for any repair or replacement made pursuant to this subsection, except that the purchaser and seller may negotiate a release or waiver upon the satisfaction of the purchaser or in exchange for monetary compensation or other consideration in lieu of repair; and
(6) at the conclusion of any repairs or replacements, the purchaser may reinitiate the alternative dispute resolution process set forth in this section regarding any claim for inadequate repair or replacement.
H. A purchaser may send a new notice pursuant to Subsection A of this section to include each alleged construction defect identified in good faith after submission of the original notice. The seller and the seller's construction professional shall have a reasonable period of time to conduct an inspection, if requested, and thereafter the parties shall comply with the requirements of Subsections B through G of this section for each additional alleged construction defect identified in reasonable detail in the notice.
I. The time periods provided for in this section shall be reasonably extended for delays that are beyond the control of seller and otherwise by written agreement of the seller and purchaser.
J. If the seller does not comply with the requirements of this section and the failure is not due to any fault of the purchaser or a result of delays that are beyond the control of seller, including weather conditions or government delay, the purchaser may commence a dwelling action.
K. Nothing in the Right to Repair Act negates or supersedes the existence of any alternative dispute resolution.
L. The statute of repose pursuant to Section 37-1-27 NMSA 1978 shall be tolled during the repair and replacement process for items specified in the notice.
SECTION 4. [NEW MATERIAL] APPLICABILITY.--The Right to Repair Act applies to single or multifamily unit dwellings designed for residential use.
SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.
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