WHEN YOU find construction defects in your new home, is it preferable to (a) sue the builder immediately or (b) get the defects corrected with no litigation expense under a binding, statutory set of deadlines that allow you to sue if you're not satisfied?
Sounds like a no-brainer.
The National Association of Home Builders hopes it is. It is about to begin a nationwide push to make the latter approach the law of the land, state by state. The 205,000-member trade group is holding out a new plan adopted by the Washington state Legislature as a model for cool-headed resolution of construction-defects disputes between homebuyers and builders.
The Washington law, which took effect June 13, essentially requires a "cure" or buffer period for the repair of defects or a financial settlement before buyers can sue the builders. The statute drew unusual bipartisan support in the Legislature and passed both houses unanimously.
If adopted nationwide, it would create a formal process within which homebuilders and their customers could handle controversies without battling it out in court.
The process would work like this:
Say you buy a new home and you begin to discover problems. The concrete pad in the garage has cracks, the siding is slightly buckled on one wall, nails are popping here and there, and - worst of all - you find an infestation of what appears to be mold.
Another example: Say you've just bought a unit in a large luxury condominium project that has recently sold out. The condominium board compiles a list of perceived construction problems and is approached by a law firm that offers to sue the builder on a contingency-fee basis.
Under Washington state's new dispute-resolution model, neither you individually nor a condo association board of directors could go to court immediately. Instead, there would be a mandatory 45-day period, within which you have to serve written notice to the builder of your intent to sue.
Once the building firm receives the notice, it would have 21 days to inspect the defects, offer to fix the problems promptly or pay you monetary damages to settle your claim. Alternatively, it could dispute your claim. If the builder chose to dispute, you would then be free to file suit immediately.
The lawsuit would have to list each of the construction defects that prompted the original complaint; additional defects could be added to the lawsuit later, provided the builder is given notice and 21 days to respond.
If the builder elects to inspect your property, it would have a 14-day deadline after the inspection to offer to remedy the defects at no cost to you, or to end the dispute with a cash settlement. If you found the offer or repairs unacceptable, you could then sue.
Tom McCabe, executive vice president of the Building Industry Association of Washington, said the dispute-resolution model was prompted by a rash of costly lawsuits filed in his state and in California. The risk of huge awards against builders - especially condominium developers - prompted insurance companies to refuse to provide coverage to contractors or to raise premiums drastically.
In many cases, McCabe said, the lawsuits were filed by trial attorneys working on contingency-fee arrangements without prior notice to builders and without offering them the opportunity to inspect or repair the problems. In some condo projects, he said, the individual unit owners weren't even polled or contacted before the lawsuits were filed.
"All we're asking is - give us a chance to fix it before you go to court," he said. "Tell us what's wrong. Let us take a look and see if we can resolve your complaint. If we can't work things out, then go ahead and sue."
Gary Garczynski, president of the National Association of Home Builders, says some type of time buffer - or "cure period" - is needed throughout the country to prevent needless litigation between builders and customers. That is why the board of directors of the association recently voted to recommend that "alternative dispute-resolution" techniques such as Washington's be adopted by other state legislatures.
"Our [Washington] Legislature is fairly liberal politically and is known as very pro-consumer," McCabe said. "So the fact that this [dispute-resolution model] was passed without a single vote against it tells you it makes sense for everybody" - homebuyers and the builders of their houses.
After all, why go to court to get stuff fixed two years later if you can get it fixed now - under a legally mandated time schedule - at no cost, and involving no lawyers? And if you're not happy, you can still sue.
Kenneth R. Harney is a syndicated columnist. Send letters in care of the Washington Post Writers Group, 1150 15th St. N.W., Washington, D.C. 20071. Or e-mail him at email@example.com.