Illinois General Assembly - Full Text of HB3627
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Full Text of HB3627  93rd General Assembly

HB3627 93rd General Assembly


093_HB3627

 
                                     LRB093 07009 MBS 07159 b

 1        AN ACT concerning real estate.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 1.  Short title.  This Act may be  cited  as  the
 5    Notice and Opportunity to Repair Act.

 6        Section  5.  Findings.  The  General  Assembly finds that
 7    limited changes in the  law  are  necessary  and  appropriate
 8    concerning    actions   claiming   damages,   indemnity,   or
 9    contribution   in   connection   with   alleged   residential
10    construction defects.

11        Section 10.  Purpose. It is the  intent  of  the  General
12    Assembly  that  this  Act apply to the types of civil actions
13    described in Section 5 while preserving adequate  rights  and
14    remedies  for  property  owners  who bring and maintain those
15    actions.

16        Section 15.  Definitions. In this Act:
17        "Action" means any civil lawsuit or action in contract or
18    tort for damages or indemnity brought against a  construction
19    professional   to  assert  a  claim,  whether  by  complaint,
20    counterclaim, or cross-claim, for damage or the loss  of  use
21    of  real  or  personal  property  caused  by  a defect in the
22    construction of a residence or in the substantial remodel  of
23    a  residence.  "Action"  does not include any civil action in
24    tort alleging personal injury or wrongful death to  a  person
25    or persons resulting from a construction defect.
26        "Claimant"  means a homeowner who asserts a claim against
27    a  construction  professional  concerning  a  defect  in  the
28    construction of a residence or in the substantial remodel  of
29    a residence.
 
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 1        "Construction  professional" means an architect, builder,
 2    builder-vendor,  contractor,  subcontractor,   engineer,   or
 3    inspector,   including,   but  not  limited  to,  any  person
 4    performing or furnishing the design, supervision, inspection,
 5    construction, or  observation  of  the  construction  of  any
 6    improvement  to  real  property,  whether operating as a sole
 7    proprietor,  partnership,  corporation,  or  other   business
 8    entity.
 9        "Homeowner" means any person, company, firm, partnership,
10    corporation, or association who contracts with a construction
11    professional  for the construction, sale, or construction and
12    sale of a residence. "Homeowner" includes, but is not limited
13    to, a subsequent purchaser of a residence from any homeowner.
14        "Residence" means a single family house, duplex, triplex,
15    quadraplex, or a unit in a multiunit residential structure in
16    which title to each individual unit  is  transferred  to  the
17    owner under the Condominium Property Act and includes general
18    and limited common elements as defined in that Act.
19        "Serve"  or  "service" means personal service or delivery
20    by certified mail to the last known address of the addressee.
21        "Substantial remodel" means a remodel of a residence  for
22    which  the  total cost exceeds the maximum amount for a small
23    claim under Supreme Court Rules.

24        Section 20.  Applicability.
25        (a)  This Act:
26             (1)  Applies to any claim that arises before, on, or
27        after July 15, 2004, as  the  result  of  a  construction
28        defect,  except  a  claim for personal injury or wrongful
29        death, if the claim is the subject of an action commenced
30        on or after July 15, 2004.
31             (2)  Prevails over  any  conflicting  law  otherwise
32        applicable to the claim or cause of action.
33        (b)  This Act does not:
 
                            -3-      LRB093 07009 MBS 07159 b
 1             (1)  bar  or  limit  any defense otherwise available
 2        except, as otherwise provided in this Act; or
 3             (2)  create a new theory upon which liability may be
 4        based.

 5        Section 25.  Contractor liability. In a claim to  recover
 6    damages resulting from a construction defect, a contractor is
 7    liable  for  his  or  her  acts  or  omissions or the acts or
 8    omissions of his or her agents, employees, or  subcontractors
 9    and is not liable for any damages caused by:
10             (1)  the  acts  or  omissions of a person other than
11        the  contractor  or  his  or  her  agent,  employee,   or
12        subcontractor;
13             (2)  the   failure   of  a  person  other  than  the
14        contractor  or   his   or   her   agent,   employee,   or
15        subcontractor  to  take  reasonable  action to reduce the
16        damages or maintain the residence;
17             (3)  normal wear, tear, or deterioration;
18             (4)  normal  shrinkage,  swelling,   expansion,   or
19        settlement; or
20             (5)  any construction defect disclosed to a claimant
21        before  his  purchase of the residence, if the disclosure
22        was  provided  in  writing  and  in  language   that   is
23        understandable and was signed by the claimant.

24        Section  30.  Notice  of  claim  of construction defects;
25    response by construction professional.
26        (a)  In every construction defect action brought  against
27    a  construction  professional,  the  claimant shall, no later
28    than 60 days before filing an action, serve written notice of
29    claim on the construction professional. The notice  of  claim
30    shall  state  that the claimant asserts a construction defect
31    claim  against  the  construction  professional   and   shall
32    describe   the  claim  in  reasonable  detail  sufficient  to
 
                            -4-      LRB093 07009 MBS 07159 b
 1    determine the general nature of the defect.
 2        (b)  Within 21 days after service of the notice of claim,
 3    the construction professional shall serve a written  response
 4    on  the  claimant by registered mail or personal service. The
 5    written response shall:
 6             (1)  propose to inspect the residence  that  is  the
 7        subject  of  the  claim  and  to  complete the inspection
 8        within a specified time frame;  including  the  statement
 9        that  the  construction  professional shall, based on the
10        inspection, offer to remedy  the  defect,  compromise  by
11        payment, or dispute the claim;
12             (2)  offer  to  compromise  and  settle the claim by
13        monetary payment without inspection; which  may  include,
14        but  is  not limited to, an express offer to purchase the
15        claimant's residence that is the subject  of  the  claim,
16        and to pay the claimant's reasonable relocation costs; or
17             (3)  state   that   the   construction  professional
18        disputes  the  claim  and   will   neither   remedy   the
19        construction defect nor compromise and settle the claim.
20        (c)  If  the construction professional disputes the claim
21    or does not respond to the claimant's notice of claim  within
22    the  time stated in subsection (b), the claimant may bring an
23    action against the construction professional  for  the  claim
24    described in the notice of claim without further notice.
25        If  the  claimant  rejects the inspection proposal or the
26    settlement  offer  made  by  the  construction   professional
27    pursuant  to subsection (b), the claimant shall serve written
28    notice  of  the  claimant's  rejection  on  the  construction
29    professional. After service of the  rejection,  the  claimant
30    may bring an action against the construction professional for
31    the  construction  defect  claim  described  in the notice of
32    claim. If the construction professional has not received from
33    the claimant, within 30 days after the claimant's receipt  of
34    the   construction   professional's   response,   either   an
 
                            -5-      LRB093 07009 MBS 07159 b
 1    acceptance   or  rejection  of  the  inspection  proposal  or
 2    settlement  offer,  then   at   any   time   thereafter   the
 3    construction professional may terminate the proposal or offer
 4    by  serving  written notice to the claimant, and the claimant
 5    may thereafter  bring  an  action  against  the  construction
 6    professional  for  the construction defect claim described in
 7    the notice of claim.
 8        (d)  If the claimant elects  to  allow  the  construction
 9    professional  to  inspect in accordance with the construction
10    professional's proposal pursuant  to  subdivision  (b)(1)  of
11    this  Section,  the  claimant  shall provide the construction
12    professional and its contractors or other  agents  reasonable
13    access  to  the  claimant's  residence  during normal working
14    hours to inspect the premises and the claimed defect.
15        (e)  Within  14  days   following   completion   of   the
16    inspection,  the construction professional shall serve on the
17    claimant:
18             (1)  a written  offer  to  remedy  the  construction
19        defect  at no cost to the claimant, including a report of
20        the scope of the inspection, the findings and results  of
21        the   inspection,   a   description   of  the  additional
22        construction necessary to remedy the defect described  in
23        the  claim,  and  a  timetable for the completion of such
24        construction;
25             (2)  a written offer to compromise  and  settle  the
26        claim  by monetary payment pursuant to subdivision (b)(2)
27        of this Section; or
28             (3)  a  written  statement  that  the   construction
29        professional  will  not  proceed  further  to  remedy the
30        defect.
31        (f)  If the construction professional  does  not  proceed
32    further  to  remedy the construction defect within the agreed
33    timetable, or  if  the  construction  professional  fails  to
34    comply  with  the provisions of subdsection (e), the claimant
 
                            -6-      LRB093 07009 MBS 07159 b
 1    may bring an action against the construction professional for
 2    the claim described in the notice of  claim  without  further
 3    notice.
 4        (g)  If  the  claimant  rejects  the  offer  made  by the
 5    construction professional pursuant to subdivision  (e)(1)  or
 6    (e)(2) to either remedy the construction defect or compromise
 7    and  settle the claim by monetary payment, the claimant shall
 8    serve written notice  of  the  claimant's  rejection  on  the
 9    construction  professional.  After  service  of the rejection
10    notice,  the  claimant  may  bring  an  action  against   the
11    construction  professional  for the construction defect claim
12    described in the notice of the  claim.  If  the  construction
13    professional  has  not  received from the claimant, within 30
14    days  after  the  claimant's  receipt  of  the   construction
15    professional's response, either an acceptance or rejection of
16    the offer made pursuant to subdivision (e)(1) or (e)(2), then
17    at  any  time  thereafter  the  construction professional may
18    terminate  the  offer  by  serving  written  notice  to   the
19    claimant.
20        (h)  Any  claimant  accepting the offer of a construction
21    professional to remedy the construction  defect  pursuant  to
22    subdivision (e)(1) of this Section shall do so by serving the
23    construction professional with a written notice of acceptance
24    within  a  reasonable time period after receipt of the offer,
25    and no later than 30 days after receipt  of  the  offer.  The
26    claimant  shall provide the construction professional and its
27    contractors  or  other  agents  reasonable  access   to   the
28    claimant's  residence  during normal working hours to perform
29    and complete the construction by the timetable stated in  the
30    offer.  The  claimant  and  construction professional may, by
31    written mutual agreement, alter the extent of construction or
32    the timetable for completion of construction  stated  in  the
33    offer,  including,  but  not limited to, repair of additional
34    defects.
 
                            -7-      LRB093 07009 MBS 07159 b
 1        (i)  Any  action  commenced  by  a  claimant   prior   to
 2    compliance  with  the  requirements  of this Section shall be
 3    subject to dismissal  without  prejudice  and  shall  not  be
 4    recommenced   until   the  claimant  has  complied  with  the
 5    requirements of this Section.
 6        (j)  Nothing in this Section may be construed to  prevent
 7    a  claimant  from  commencing  an  action on the construction
 8    defect  claim  described  in  the  notice  of  claim  if  the
 9    construction professional fails to perform  the  construction
10    agreed  upon, fails to remedy the defect, or fails to perform
11    by the timetable agreed upon pursuant to  subdivision  (b)(1)
12    or subsection (h) of this Section.
13        (k)  Prior   to   commencing   any   action   alleging  a
14    construction defect, or after the  dismissal  of  any  action
15    without  prejudice  pursuant  to subsection (i), the claimant
16    may amend the notice of claim to include construction defects
17    discovered after the service of the original notice of  claim
18    and  must  otherwise  comply  with  the  requirements of this
19    Section for the additional claims. The service of an  amended
20    notice  of  claim shall relate back to the original notice of
21    claim for purposes of tolling  statutes  of  limitations  and
22    repose.  Claims for defects discovered after the commencement
23    or recommencement of an action may be added  to  such  action
24    only  after providing notice to the construction professional
25    of the defect and allowing for response under subsection (b).

26        Section 35. Effect of non-compliance.
27        (a)  If a  claimant  unreasonably  rejects  a  reasonable
28    written  offer  of settlement made as part of a response made
29    pursuant to Section 30 of this Act or  does  not  permit  the
30    contractor or independent contractor a reasonable opportunity
31    to  inspect  or  to repair the defect pursuant to an accepted
32    offer  of  settlement  and  thereafter  commences  an  action
33    governed by this Act,  the  court  in  which  the  action  is
 
                            -8-      LRB093 07009 MBS 07159 b
 1    commenced may:
 2             (1)  deny  the claimant's attorney's fees and costs;
 3        and
 4             (2)  award  attorney's  fees  and   costs   to   the
 5        contractor.
 6        (b)  Any  sums  paid  under a homeowner's warranty, other
 7    than sums paid in satisfaction of claims that are  collateral
 8    to  any  coverage  issued  to  or by the contractor, shall be
 9    deducted from any recovery.
10        (c)  If  a  contractor   fails   to   comply   with   the
11    requirements of this Act, the claimant shall not be obligated
12    to  further  comply with the provisions of this Act and shall
13    be allowed to commence an action without satisfying any other
14    requirement of this Act; none of the provisions of  this  Act
15    shall be applied to the detriment of the claimant.

16        Section 40.  Construction defect list.
17        (a)  In  every  action  brought  against  a  construction
18    professional,   the   claimant,   including   a  construction
19    professional asserting a claim against  another  construction
20    professional,  shall  file  with  the  court and serve on the
21    defendant a list of known construction defects in  accordance
22    with this Section.
23        (b)  The list of known construction defects shall contain
24    a  description  of the construction that the claimant alleges
25    to be defective. The list of known construction defects shall
26    be filed with the court and served on the defendant within 30
27    days after the commencement of  the  action  or  within  such
28    longer period as the court in its discretion may allow.
29        (c)  The  list  of  known  construction  defects  may  be
30    amended  by  the claimant to identify additional construction
31    defects as they become known to the claimant.
32        (d)  The  list  of  known  construction   defects   shall
33    specify,   to   the   extent   known  to  the  claimant,  the
 
                            -9-      LRB093 07009 MBS 07159 b
 1    construction professional responsible for each alleged defect
 2    identified by the claimant.
 3        (e)  If a subcontractor or supplier is added as  a  party
 4    to  an  action under this Section, the party making the claim
 5    against such subcontractor or supplier  shall  serve  on  the
 6    subcontractor or supplier the list of construction defects in
 7    accordance  with this Section within 30 days after service of
 8    the complaint against the subcontractor or supplier or within
 9    such period as the court in its discretion may allow.

10        Section 45.  Mandatory notice.
11        (a)  The construction professional shall  provide  notice
12    to  each  homeowner,  upon entering into a contract for sale,
13    construction, or substantial remodel of a residence,  of  the
14    construction   professional's   right   to   offer   to  cure
15    construction  defects  before  a   homeowner   may   commence
16    litigation against the construction professional. Such notice
17    shall  be  conspicuous  and  may  be  included as part of the
18    underlying contract signed by the homeowner.
19        (b)  The notice required by subsection (a)  shall  be  in
20    substantially the following form:

21        SECTIONS  1  THROUGH  40 OF THE NOTICE AND OPPORTUNITY TO
22        REPAIR ACT CONTAIN IMPORTANT REQUIREMENTS YOU MUST FOLLOW
23        BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE  CONSTRUCTION
24        AGAINST  THE  SELLER  OR BUILDER OF YOUR HOME. SIXTY (60)
25        DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU  MUST  DELIVER  TO
26        THE   SELLER   OR   BUILDER   A  WRITTEN  NOTICE  OF  ANY
27        CONSTRUCTION CONDITIONS  YOU  ALLEGE  ARE  DEFECTIVE  AND
28        PROVIDE YOUR SELLER OR BUILDER THE OPPORTUNITY TO MAKE AN
29        OFFER  TO  REPAIR  OR  PAY  FOR  THE DEFECTS. YOU ARE NOT
30        OBLIGATED TO ACCEPT ANY OFFER  MADE  BY  THE  BUILDER  OR
31        SELLER.  THERE  ARE STRICT DEADLINES AND PROCEDURES UNDER
32        STATE LAW, AND FAILURE TO FOLLOW  THEM  MAY  AFFECT  YOUR
33        ABILITY TO FILE A LAWSUIT.
 
                            -10-     LRB093 07009 MBS 07159 b
 1        (c)  This  Act  shall  not  preclude or bar any action if
 2    notice is not given to the  homeowner  as  required  by  this
 3    Section.

 4        Section  50.  No  effect on other rights. Nothing in this
 5    Act shall be construed to  hinder  or  otherwise  affect  the
 6    employment,   agency,  or  contractual  relationship  between
 7    homeowners and construction professionals during the  process
 8    of  construction  or  remodeling  and  does  not preclude the
 9    termination of those relationships as allowed under the  law.
10    Nothing  in  this  Act  shall  negate or otherwise restrict a
11    construction professional's right  to  access  or  inspection
12    provided by law, covenant, easement, or contract.

13        Section  55.  Tolling  of  statutes  of  limitations  and
14    repose.  If a written notice of claim is served under Section
15    30 of this Act within the time prescribed for the  filing  of
16    an  action  under  this  Act, the statutes of limitations for
17    construction-related claims are tolled until  75  days  after
18    the  period  of  time during which the filing of an action is
19    barred under the applicable statute of limitations.