What to Do?
Minimum Requirements: The bare minimum a Builder must do to comply with Title 7 is discussed in the section titled "The Absolute Least". This section discusses the opportunities Builders have to more pro-actively approach Title 7.
Opportunities: In addition to merely doing the absolute least to comply with Title 7, Builders have the option to make use of various opportunities created by Title 7. As examples:
- Establish Written Maintenance Requirements: Title 7 requires the Buyer to follow all reasonable written maintenance requirements (California Civil Code Section 907). Thus, a Builder has an opportunity to shift some of the burden for a failure to comply with the Performance Standards by obligating the Buyer to perform specific recommended maintenance obligations and practices. Such obligations and practices must be provided to the Buyer in writing. This is a defense that may be asserted by the Builder, but only if the maintenance recommendations are reasonable and are provided to the Buyer in writing. (Nevertheless, the homeowner is still required to perform "commonly accepted maintenance standards," whatever those standards are determined to be.)
- Enhanced Protection Agreements: There is some room to further define the Performance Standards established by Title 7 by creation of an Enhanced Protection Agreement. A Builder may be able to eliminate some of the ambiguity or vagueness in the Performance Standards by creating their own more precise standards which the Builder expects to satisfy. A Builder may either create its own standards or use currently available standards provided they equal or exceed Title 7's Performance Standards. Some Builders, attorneys and design professionals have adopted the construction standards found in the publication entitled "California Building Performance Guidelines for Residential Construction and Homeowner Maintenance Guide". If a Builder creates standards, those new standards must be recorded as well as provided to Buyers, or else they will not be enforceable (see Recordation of Documents).
Builders may consider the items discussed in the section titled "Careful Planning."
As understanding of Title 7 continues to evolve (hopefully the courts will begin providing guidance in the next few years as the 10 year statute of limitations begins to trigger litigation on 2003 construction and trial court decisions are appealed to the appellate courts which then issue opinions that provide some guidance). As the courts begin to rule, proper recommendations may change or become more definitive.
It is rather difficult to proceed into the maze of Title 7 implementation without legal advice. What we hope to accomplish with our Title 7 Discussion is to provide some helpful insights as Builders undertake this arduous task of reading, understanding and implementing Title 7. No doubt these comments raise additional concerns or questions. As always, we are available to assist our clients with these matters.