TL;DR — Key Takeaways
- California’s Right to Repair Act covers original construction intended to be sold as individual homes, where the purchase agreement was signed on or after January 1, 2003.
- It generally does not reach a remodel, an addition, a home you had built on land you already owned, or an ADU built for your own use. Condominium conversions are expressly excluded.
- Where the Act applies, it is effectively the only route for a defect claim. The California Supreme Court held that pleading negligence instead does not avoid it.
- Where the Act does not apply, ordinary claims remain: breach of contract, breach of warranty, and negligence, subject to the rule that negligence generally requires actual property damage.
- The outer time limit differs. Inside the Act, its own ten-year limit and shorter standard-specific periods apply. Outside it, the Code of Civil Procedure’s ten-year statute of repose governs.
- Getting this threshold question wrong can mean following the wrong procedure, pleading the wrong claims, or missing the deadline that actually applies.
California’s Right to Repair Act, also known as SB 800, applies to original construction intended to be sold as an individual dwelling unit, sold under a purchase agreement signed on or after January 1, 2003. In practice that means newly built homes and newly built condominiums bought from a builder. It generally does not apply to a remodel, an addition, a custom home built on land the owner already held, or an ADU built for the owner’s own use, and it expressly excludes condominium conversions. Whether it applies decides which procedures you must follow, which claims you can bring, and which deadlines govern.
Bay Legal’s complete guide to the Right to Repair Act covers how the Act works once it applies. This post covers the question that comes first.
What the Act covers
Original construction. The Act’s standards apply to original construction intended to be sold as an individual dwelling unit. The key words are original and intended to be sold. The Act was written for homes a builder constructs and sells to the public.
The date line. The Act applies only to new residential units where the purchase agreement was signed by the seller on or after January 1, 2003. Homes sold under earlier agreements fall outside it.
Condominiums. A newly built condominium project sold unit by unit is covered, including its common areas. Who an HOA can sue for construction defects covers the association’s position.
Conversions. The Act expressly excludes condominium conversions. An apartment building later divided into condominiums is not original construction intended to be sold as individual units.
What the Act generally does not cover
The Act’s scope language is the reason these fall outside it, and practitioners broadly agree on the result.
Remodels and additions. Work on an existing home is not original construction intended to be sold. A kitchen remodel, a second-story addition, or a new roof on a house you own is generally outside the Act.
Custom homes on land you already own. Where you hire a contractor to build a house for you on your own lot, the house is not being built for sale. The Act was not written for that relationship.
An ADU built for your own use. Same reasoning: an owner commissioning an accessory unit on their property is not buying original construction from a builder who built it for sale.
One honest caveat: there is no published California appellate decision squarely holding that a remodel or addition falls outside the Act. The conclusion rests on the statute’s scope language and on the consistent reading of it by practitioners. It is a strong position, but it is a reading of the text rather than a holding.
If you are not sure which side of the line your project falls on, that question is worth settling before you send a single notice. Call Bay Legal at (650) 668-8000 in Northern California or (213) 668-8000 in Southern California.
Working out which side of the line you are on
A few questions usually settle it.
Did you buy the home from a builder, or hire someone to build or change it? A purchase from the builder of newly constructed housing points toward the Act. Hiring a contractor for work on property you already own points away from it.
When was the purchase agreement signed? On or after January 1, 2003 is required.
Was the building converted? A condominium created by converting an existing apartment building is excluded.
Is the defect in the original construction, or in later work? A new home covered by the Act may later have a remodel that is not. The Act governs claims about the original construction; later work by a different contractor is analyzed on its own terms.
Where the answers conflict, or the history of the property is unclear, the question is worth resolving before any notice is sent.
When the Act applies, it is exclusive
For homes the Act covers, the California Supreme Court held in McMillin Albany LLC v. Superior Court (2018) that the Act is effectively the exclusive remedy for construction defects, covering both economic loss and actual property damage. Its pre-litigation procedures apply however the claim is labeled.
That resolved a split. Earlier Court of Appeal decisions had held that a homeowner who suffered actual property damage could sue in negligence outside the Act. McMillin disapproved them. For a covered home, pleading negligence, strict liability, or breach of warranty instead does not avoid the Act’s procedures or its standards.
What that means in practice:
- The homeowner must follow the Act’s pre-litigation procedure: written notice to the builder, the builder’s acknowledgment, inspection, and the builder’s offer to repair.
- A builder that fails to respond to a proper notice within the Act’s deadlines can lose the benefit of the procedure, and the homeowner may then proceed to court.
- A homeowner who sues without following the procedure can have the lawsuit stayed until it is completed.
- The claim is measured against the Act’s functionality standards, which address water intrusion, structural integrity, soils, fire protection, plumbing, electrical, and other systems.
When the Act does not apply, other claims remain
Outside the Act, the ordinary law of construction claims governs, with its own strengths and limits.
Breach of contract. Where you hired the contractor, the contract is usually the center of the claim: what the contractor promised, whether it performed, and what the contract says about warranties, remedies, and disputes.
Breach of warranty. Express warranties in the contract, and implied warranties that the work would be done in a good and workmanlike manner.
Negligence. Available against a contractor whose careless work caused harm, but with an important limit. The California Supreme Court held in Aas v. Superior Court (2000) that a homeowner generally cannot recover in negligence for a construction defect that has not yet caused actual damage to property; the remedy for a defect that has not yet caused harm lies in contract or warranty. The Right to Repair Act was enacted partly in response to that decision, which is why the limit matters most outside it.
Strict liability. California has applied strict liability to parties in the business of mass-producing housing. It is generally not available against a contractor who remodeled a single home.
Licensing. Outside the Act, the contractor’s license status can matter a great deal. An unlicensed contractor generally cannot sue to be paid and may have to return what it was paid. Unlicensed contractor disgorgement covers that remedy.
The deadlines differ
This is where getting the threshold question wrong can end a claim.
Inside the Act. The Act has its own outer limit of ten years from substantial completion, and specific standards carry shorter periods for particular components. Those periods, not the general limitations rules, govern a covered claim.
Outside the Act. The Code of Civil Procedure’s ten-year statute of repose for latent construction defects runs from substantial completion of the improvement. Patent defects, those apparent on reasonable inspection, carry a four-year period. Contract claims carry their own limitations periods, and those can run out well before ten years. The California Supreme Court has held that the ten-year repose is not extended by a contractor’s promises to repair.
A homeowner who assumes the Act applies to a remodel may send the wrong notices and wait for a builder response the Act does not require, while the contract limitations period runs. The practical deadline map covers the general limitations periods.
When the answer is that it does not matter much
Worth saying directly: for some disputes the scope question is academic.
A small remodel dispute with a contractor who will negotiate is usually resolved on the contract, the photographs, and a repair estimate, whether or not a court would call it a Right to Repair Act case. And where the Act clearly applies, a builder with a functioning warranty program often fixes the problem through the pre-litigation process without anyone filing suit.
The scope question matters most at the edges: a significant defect, an uncooperative builder or contractor, a deadline approaching, or a home whose history makes its status uncertain. That is when it is worth answering carefully and early.
Bay Legal represents homeowners and builders in construction defect matters. Reach us at (650) 668-8000, (213) 668-8000, or through baylegal.com/contact-us.
Frequently Asked Questions
Which homes does SB 800 cover?
Original construction intended to be sold as individual dwelling units, sold under a purchase agreement signed by the seller on or after January 1, 2003. That includes newly built homes and newly built condominiums bought from a builder, including condominium common areas. It expressly excludes condominium conversions.
Does the Right to Repair Act apply to a remodel or addition?
Generally not. The Act’s scope language covers original construction intended for sale, which a remodel or addition to an existing home is not, and practitioners broadly read it that way. No published California appellate decision squarely holds this, so the conclusion rests on the statute’s text.
Is SB 800 the exclusive remedy for residential defects?
For homes the Act covers, yes, effectively. In McMillin Albany LLC v. Superior Court (2018), the California Supreme Court held that the Act governs defect claims for covered homes, including actual property damage, and that its pre-litigation procedures apply regardless of how the claim is pleaded.
What claims are available if SB 800 does not apply?
Breach of contract, breach of express or implied warranty, and negligence. Negligence generally requires actual property damage under Aas v. Superior Court (2000); a defect that has not yet caused harm is typically a contract or warranty claim. Strict liability generally applies only against mass producers of housing.
What deadlines apply under the Act compared with outside it?
Inside the Act, its own ten-year outer limit from substantial completion and shorter standard-specific periods govern. Outside it, the Code of Civil Procedure’s ten-year statute of repose for latent defects, a four-year period for patent defects, and the ordinary contract limitations periods apply. The repose period is not extended by promises to repair.
