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1 | AN ACT concerning real estate.
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2 | Be it enacted by the People of the State of Illinois, | ||||||||||||||||||||||||
3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | ||||||||||||||||||||||||
5 | Notice and Opportunity
to
Repair Act.
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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.
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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.
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16 | Section 15. Definitions. In this Act:
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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 of | ||||||||||||||||||||||||
21 | real or personal property caused by a
defect in the |
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1 | construction of a residence or in the substantial
remodel of a | ||||||
2 | residence. "Action" does not include any civil action
in tort | ||||||
3 | alleging personal injury or wrongful death to a person or
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4 | persons resulting from a construction defect.
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5 | "Claimant" means a homeowner who asserts a claim against a | ||||||
6 | construction
professional concerning a defect in the | ||||||
7 | construction of a residence or
in the substantial remodel of a | ||||||
8 | residence.
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9 | "Construction professional" means an architect, builder, | ||||||
10 | builder-vendor,
contractor, subcontractor, engineer, or | ||||||
11 | inspector, including,
but not limited to, any person performing | ||||||
12 | or furnishing the design,
supervision, inspection, | ||||||
13 | construction, or observation of the
construction of any | ||||||
14 | improvement to real property, whether operating as
a sole | ||||||
15 | proprietor, partnership, corporation, or other business | ||||||
16 | entity.
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17 | "Homeowner" means any person, company, firm, partnership, | ||||||
18 | corporation,
or association who contracts with a construction | ||||||
19 | professional for the
construction, sale, or construction and | ||||||
20 | sale of a residence.
"Homeowner" includes, but is not limited | ||||||
21 | to, a subsequent purchaser of
a residence from any homeowner.
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22 | "Residence" means a single family house, duplex, triplex, | ||||||
23 | quadraplex, or
a unit in a multiunit residential structure in | ||||||
24 | which title to each
individual unit is transferred to the owner | ||||||
25 | under
the Condominium Property Act and
includes general and | ||||||
26 | limited common elements as defined in that Act.
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1 | "Serve" or "service" means personal service or delivery by | ||||||
2 | certified
mail to the last known address of the addressee.
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3 | "Substantial remodel" means a remodel of a residence for | ||||||
4 | which the
total cost exceeds the maximum amount for a small | ||||||
5 | claim under Supreme Court
Rules.
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6 | Section 20. Applicability.
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7 | (a) This Act:
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8 | (1) Applies to any claim that arises before, on, or | ||||||
9 | after July 15,
2008, as the result of a construction | ||||||
10 | defect, except a claim for
personal injury or wrongful | ||||||
11 | death, if the claim is the subject of
an action commenced | ||||||
12 | on or after July 15, 2008.
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13 | (2) Prevails over any conflicting law otherwise | ||||||
14 | applicable to the
claim or cause of action.
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15 | (b) This Act does not:
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16 | (1) bar or limit any defense otherwise available | ||||||
17 | except, as
otherwise provided in this Act; or
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18 | (2) create a new theory upon which liability may be
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19 | based.
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20 | Section 25. Contractor liability.
In a claim to recover | ||||||
21 | damages resulting from a construction
defect, a contractor is | ||||||
22 | liable for his or her acts or omissions or the acts or
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23 | omissions of his or her agents, employees, or subcontractors | ||||||
24 | and is not liable
for any damages caused by:
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1 | (1) the acts or omissions of a person other than the | ||||||
2 | contractor
or his or her agent, employee, or subcontractor;
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3 | (2) the failure of a person other than the contractor | ||||||
4 | or his or her
agent, employee, or subcontractor to take | ||||||
5 | reasonable action to reduce
the damages or maintain the | ||||||
6 | residence;
| ||||||
7 | (3) normal wear, tear, or deterioration;
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8 | (4) normal shrinkage, swelling, expansion, or | ||||||
9 | settlement; or
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10 | (5) any construction defect disclosed to a claimant | ||||||
11 | before his
purchase of the residence, if the disclosure was | ||||||
12 | provided in writing
and in language that is understandable | ||||||
13 | and was signed by the claimant.
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14 | Section 30. Notice of claim of construction defects; | ||||||
15 | response by
construction professional.
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16 | (a) In every construction defect action brought against a | ||||||
17 | construction
professional, the claimant shall, no later than 60 | ||||||
18 | days before filing
an action, serve written notice of claim on | ||||||
19 | the construction
professional. The notice of claim shall state | ||||||
20 | that the claimant
asserts a construction defect claim against | ||||||
21 | the construction
professional and shall describe the claim in | ||||||
22 | reasonable detail
sufficient to determine the general nature of | ||||||
23 | the defect.
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24 | (b) Within 21 days after service of the notice of claim, | ||||||
25 | the
construction professional shall serve a written response on |
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1 | the
claimant by registered mail or personal service. The | ||||||
2 | written response
shall:
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3 | (1) propose to inspect the residence that is the | ||||||
4 | subject of the
claim and to complete the inspection within | ||||||
5 | a specified time frame;
including the statement that the | ||||||
6 | construction professional shall, based
on the inspection, | ||||||
7 | offer to remedy the defect, compromise by payment,
or | ||||||
8 | dispute the claim;
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9 | (2) offer to compromise and settle the claim by | ||||||
10 | monetary payment
without inspection; which may include, | ||||||
11 | but is not limited to, an
express offer to purchase the | ||||||
12 | claimant's residence that is the subject
of the claim, and | ||||||
13 | to pay the claimant's reasonable relocation costs; or
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14 | (3) state that the construction professional disputes | ||||||
15 | the claim
and will neither remedy the construction defect | ||||||
16 | nor compromise and
settle the claim.
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17 | (c) If the construction professional disputes the claim | ||||||
18 | or does not
respond to the claimant's notice of claim within | ||||||
19 | the time stated in
subsection (b) of this Section, the claimant | ||||||
20 | may bring an action against the
construction professional for | ||||||
21 | the claim described in the notice of
claim without further | ||||||
22 | notice.
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23 | If the claimant rejects the inspection proposal or the
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24 | settlement offer made by the construction professional | ||||||
25 | pursuant to
subsection (b), the claimant shall serve written | ||||||
26 | notice of the
claimant's rejection on the construction |
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1 | professional. After
service of the rejection, the claimant may | ||||||
2 | bring an action against the
construction professional for the | ||||||
3 | construction defect claim described
in the notice of claim. If | ||||||
4 | the construction professional has not
received from the | ||||||
5 | claimant, within 30 days after the claimant's receipt
of the | ||||||
6 | construction professional's response, either an acceptance
or | ||||||
7 | rejection of the inspection proposal or settlement offer, then | ||||||
8 | at
any time thereafter the construction professional may | ||||||
9 | terminate the
proposal or offer by serving written notice to | ||||||
10 | the claimant, and the
claimant may thereafter bring an action | ||||||
11 | against the construction
professional for the construction | ||||||
12 | defect claim described in the notice
of claim.
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13 | (d) If the claimant elects to allow the construction | ||||||
14 | professional to
inspect in accordance with the construction | ||||||
15 | professional's proposal pursuant to
paragraph (1) of | ||||||
16 | subsection (b) of this Section, the claimant shall provide the | ||||||
17 | construction
professional and its contractors or other agents | ||||||
18 | reasonable access to
the claimant's residence during normal | ||||||
19 | working hours to inspect the
premises and the claimed defect.
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20 | (e) Within 14 days following completion of the | ||||||
21 | inspection, the
construction professional shall serve on the | ||||||
22 | claimant:
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23 | (1) a written offer to remedy the construction defect | ||||||
24 | at no
cost to the claimant, including a report of the scope | ||||||
25 | of
the inspection, the findings and results of the | ||||||
26 | inspection,
a description of the additional construction |
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1 | necessary to
remedy the defect described in the claim, and | ||||||
2 | a timetable
for the completion of such construction;
| ||||||
3 | (2) a written offer to compromise and settle the claim | ||||||
4 | by
monetary payment pursuant to paragraph (2) of subsection | ||||||
5 | (b) of this
Section; or
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6 | (3) a written statement that the construction
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7 | professional will not proceed further to remedy the defect.
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8 | (f) If the construction professional does not proceed | ||||||
9 | further to
remedy the construction defect within the agreed | ||||||
10 | timetable, or if
the construction professional fails to comply | ||||||
11 | with the provisions
of subsection (e), the claimant may bring | ||||||
12 | an action
against the construction professional for the claim | ||||||
13 | described in
the notice of claim without further notice.
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14 | (g) If the claimant rejects the offer made by the | ||||||
15 | construction
professional pursuant to paragraph (1) of | ||||||
16 | subsection (e) or paragraph (2) of subsection (e) of this | ||||||
17 | Section to
either remedy the construction defect or compromise | ||||||
18 | and settle
the claim by monetary payment, the claimant shall | ||||||
19 | serve written
notice of the claimant's rejection on the | ||||||
20 | construction
professional. After service of the rejection | ||||||
21 | notice, the
claimant may bring an action against the | ||||||
22 | construction
professional for the construction defect claim | ||||||
23 | described in the
notice of the claim. If the construction | ||||||
24 | professional has not
received from the claimant, within 30 days | ||||||
25 | after the claimant's
receipt of the construction | ||||||
26 | professional's response, either an
acceptance or rejection of |
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1 | the offer made pursuant to paragraph (1) of subsection (e) or | ||||||
2 | paragraph (2) of subsection (e) of this Section, then at any | ||||||
3 | time thereafter the construction
professional may terminate | ||||||
4 | the offer by serving written notice to
the claimant.
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5 | (h) Any claimant accepting the offer of a construction | ||||||
6 | professional to
remedy the construction defect pursuant to | ||||||
7 | paragraph (1) of subsection (e) of
this Section shall do so by | ||||||
8 | serving the construction professional with
a written notice of | ||||||
9 | acceptance within a reasonable time period after
receipt of the | ||||||
10 | offer, and no later than 30 days after receipt of the
offer.
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11 | The claimant shall provide the construction professional and
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12 | its contractors or other agents reasonable access to the
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13 | claimant's residence during normal working hours to perform and
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14 | complete the construction by the timetable stated in the offer.
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15 | The claimant and construction professional may, by written
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16 | mutual agreement, alter the extent of construction or the
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17 | timetable for completion of construction stated in the offer,
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18 | including, but not limited to, repair of additional defects.
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19 | (i) Any action commenced by a claimant prior to compliance | ||||||
20 | with the
requirements of this Section shall be subject to | ||||||
21 | dismissal without
prejudice and shall not be recommenced until | ||||||
22 | the claimant has complied
with the requirements of this | ||||||
23 | Section.
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24 | (j) Nothing in this Section may be construed to prevent a | ||||||
25 | claimant
from commencing an action on the construction defect | ||||||
26 | claim described in
the notice of claim if the construction |
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1 | professional fails to perform
the construction agreed upon, | ||||||
2 | fails to remedy the defect, or fails to
perform by the | ||||||
3 | timetable agreed upon pursuant to paragraph (1) of subsection | ||||||
4 | (b) or
subsection (h) of this Section.
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5 | (k) Prior to commencing any action alleging a | ||||||
6 | construction defect, or
after the dismissal of any action | ||||||
7 | without prejudice pursuant to
subsection (i) of this Section, | ||||||
8 | the claimant may amend the notice of claim to
include | ||||||
9 | construction defects discovered after the service of the
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10 | original notice of claim and must otherwise comply with the
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11 | requirements of this Section for the additional claims. The | ||||||
12 | service of
an amended notice of claim shall relate back to the | ||||||
13 | original notice of
claim for purposes of tolling statutes of | ||||||
14 | limitations and repose.
Claims for defects discovered after the | ||||||
15 | commencement or recommencement
of an action may be added to | ||||||
16 | such action only after providing notice to
the construction | ||||||
17 | professional of the defect and allowing for response
under | ||||||
18 | subsection (b) of this Section.
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19 | Section 35. Effect of non-compliance.
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20 | (a) If a claimant unreasonably rejects a reasonable | ||||||
21 | written offer of
settlement made as part of a response made | ||||||
22 | pursuant to Section 30 of
this Act or does not permit the | ||||||
23 | contractor or independent contractor a
reasonable opportunity | ||||||
24 | to inspect or to repair the defect pursuant to
an accepted | ||||||
25 | offer of settlement and thereafter commences an action
governed |
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1 | by this Act, the court in which the action is commenced may:
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2 | (1) deny the claimant's attorney's fees and costs; | ||||||
3 | and
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4 | (2) award attorney's fees and costs to the | ||||||
5 | contractor.
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6 | (b) Any sums paid under a homeowner's warranty, other than | ||||||
7 | sums paid
in satisfaction of claims that are collateral to any | ||||||
8 | coverage issued to
or by the contractor, shall be deducted from | ||||||
9 | any recovery.
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10 | (c) If a contractor fails to comply with the requirements | ||||||
11 | of this Act,
the claimant shall not be obligated to further | ||||||
12 | comply with the
provisions of this Act and shall be allowed to | ||||||
13 | commence an action
without satisfying any other requirement of | ||||||
14 | this Act; none of the
provisions of this Act shall be applied | ||||||
15 | to the detriment of the
claimant.
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16 | Section 40. Construction defect list.
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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.
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23 | (b) The list of known construction defects shall contain a | ||||||
24 | description
of the construction that the claimant alleges to be | ||||||
25 | defective. The list
of known construction defects shall be |
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1 | filed with the court and served
on the defendant within 30 days | ||||||
2 | after the commencement of the action or
within such longer | ||||||
3 | period as the court in its discretion may allow.
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4 | (c) The list of known construction defects may be amended | ||||||
5 | by the
claimant to identify additional construction defects as | ||||||
6 | they become
known to the claimant.
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7 | (d) The list of known construction defects shall specify, | ||||||
8 | to the extent
known to the claimant, the construction | ||||||
9 | professional responsible for
each alleged defect identified by | ||||||
10 | the claimant.
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11 | (e) If a subcontractor or supplier is added as a party to | ||||||
12 | an action
under this Section, the party making the claim | ||||||
13 | against such
subcontractor or supplier shall serve on the | ||||||
14 | subcontractor or supplier
the list of construction defects in | ||||||
15 | accordance with this Section within
30 days after service of | ||||||
16 | the complaint against the subcontractor or
supplier or within | ||||||
17 | such period as the court in its discretion may
allow.
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18 | Section 45. Mandatory notice.
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19 | (a) The construction professional shall provide notice to | ||||||
20 | each
homeowner, upon entering into a contract for sale, | ||||||
21 | construction, or
substantial remodel of a residence, of the | ||||||
22 | construction professional's
right to offer to cure | ||||||
23 | construction defects before a homeowner may
commence | ||||||
24 | litigation against the construction professional. The notice
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25 | shall be conspicuous and may be included as part of the |
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1 | underlying
contract signed by the homeowner.
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2 | (b) The notice required by subsection (a) of this Section | ||||||
3 | shall be in substantially
the following form:
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4 | SECTIONS 1 THROUGH 40 OF THE NOTICE AND OPPORTUNITY TO | ||||||
5 | REPAIR ACT CONTAIN IMPORTANT REQUIREMENTS YOU MUST FOLLOW | ||||||
6 | BEFORE YOU MAY
FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION | ||||||
7 | AGAINST THE SELLER OR
BUILDER OF YOUR HOME. SIXTY (60) DAYS | ||||||
8 | BEFORE YOU FILE YOUR
LAWSUIT, YOU MUST DELIVER TO THE | ||||||
9 | SELLER OR BUILDER A WRITTEN
NOTICE OF ANY CONSTRUCTION | ||||||
10 | CONDITIONS YOU ALLEGE ARE DEFECTIVE
AND PROVIDE YOUR SELLER | ||||||
11 | OR BUILDER THE OPPORTUNITY TO MAKE AN
OFFER TO REPAIR OR | ||||||
12 | PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO
ACCEPT ANY | ||||||
13 | OFFER MADE BY THE BUILDER OR SELLER. THERE ARE STRICT
| ||||||
14 | DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO | ||||||
15 | FOLLOW
THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT. | ||||||
16 | (c) This Act shall not preclude or bar any action if | ||||||
17 | notice is not
given to the homeowner as required by this | ||||||
18 | Section.
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19 | Section 50. No effect on other rights.
Nothing in this Act | ||||||
20 | shall be construed to hinder or otherwise affect
the | ||||||
21 | employment, agency, or contractual relationship between | ||||||
22 | homeowners
and construction professionals during the process | ||||||
23 | of construction or
remodeling and does not preclude the | ||||||
24 | termination of those relationships
as allowed under the law. | ||||||
25 | Nothing in this Act shall negate or
otherwise restrict a |
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1 | construction professional's right to access or
inspection | ||||||
2 | provided by law, covenant, easement, or contract.
| ||||||
3 | Section 55. Tolling of statutes of limitations and repose.
| ||||||
4 | If a written notice of claim is served under Section 30 of this | ||||||
5 | Act
within the time prescribed for the filing of an action | ||||||
6 | under this Act,
the statutes of limitations for | ||||||
7 | construction-related claims are tolled
until 75 days after the | ||||||
8 | period of time during which the filing of an
action is barred | ||||||
9 | under the applicable statute of limitations.
| ||||||
10 | Section 99. Effective date. This Act takes effect upon | ||||||
11 | becoming law. |