(a) "Action" means any civil action or arbitration proceeding between a claimant and a contractor for damages or indemnity asserting a claim for injury or loss to a dwelling or personal property caused by an alleged defect arising out of or related to the construction or a remodel of a dwelling.
(b) "Association" means a non-profit homeowners organization as defined in K.S.A. 60-3611, and amendments thereto.
(c) "Claimant" means a homeowner, including a subsequent purchaser, or association who asserts a claim against a contractor concerning a defect in the construction or in the remodel of a dwelling.
(d) "Construction defect" or "defect" means a deficiency in, or a deficiency arising out of the specifications, planning, supervision or construction of residential improvements that results from any of the following:
(1) Defective material, products or components used in the construction of residential improvements.
(2) Violation of the applicable codes in effect at the time of construction of residential improvements.
(3) Failure to construct residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction.
(e) "Contractor" means any person, firm, partnership, corporation, association or other organization that is engaged in the business of constructing dwellings.
(f) "Dwelling" means a single-family house, duplex or multifamily unit designed for residential use in which title to each individual unit is transferred to the owner under a condominium or cooperative system and shall include common areas and improvements that are owned or maintained by an association or by members of an association. A dwelling includes the systems and other components and improvements that are part of a single or multifamily unit at the time of construction. For the purposes of this act "dwelling" does not mean manufactured home as defined in K.S.A. 58-4202, and amendments thereto.
(g) "Serve" or "service" means personal service or delivery by certified mail, return receipt requested, to the last known address of the addressee.
(h) "Subcontractor" means a contractor who performs work on behalf of a contractor in the construction of a dwelling.
History: L. 2003, ch. 74, § 1; July 1.
(b) If the statute of limitations would expire during the time period necessary to allow the parties to comply with the provisions of this act, the statute of limitations shall be tolled if the claimant gives notice of the claim to the contractor within 90 days of entry of the order of dismissal of the action without prejudice pursuant to subsection (a).
(c) If the statute of limitations would expire during the time period necessary to allow the parties to comply with the provisions of this act, the claimant's notice of claim shall serve to toll the statute of limitations for 180 days after the latest of the following three dates: (1) The date the claimant personally serves or mails the notice of claim; (2) the date agreed upon for the contractor to make payment under subsection (c)(3) or (g)(2) of K.S.A. 60-4704, and amendments thereto; or (3) the date agreed upon for the contractor to completely remedy the construction defect under subsection (c)(2) or (g)(1) of K.S.A. 60-4704, and amendments thereto.
(d) Nothing in this section shall be interpreted to shorten the statute of limitations under K.S.A. 60-501 et seq., and amendments thereto, otherwise applicable to a claimant's action against a contractor.
History: L. 2003, ch. 74, § 2; July 1.
(b) This act shall not supersede express warranty, implied warranty or other provisions of a contract between the contractor and the claimant.
History: L. 2003, ch. 74, § 3; July 1.
(b) Within 15 days after service of the notice of claim, the contractor shall serve a copy of the notice to each subcontractor who may be responsible for a defect specified in the notice and include with the notice the specific defect for which the contractor believes the subcontractor may be responsible.
(c) Within 30 days after service of the notice of claim by claimant, each contractor that has received such notice shall serve a written response on the claimant. The written response shall:
(1) Propose to inspect the dwelling that is the subject of the claim;
(2) offer to remedy the alleged construction defect at no cost to the claimant including a description of the additional construction necessary to remedy the defect, a specification of the date when the contractor proposes to commence the work and the date the work will be completed;
(3) offer to compromise and settle the claim by monetary payment without inspection including a specification of the amount of the payment and the date the payment will be made; or
(4) state that the contractor disputes the claim and will neither remedy the alleged construction defect nor compromise and settle the claim.
(d) If the contractor refuses service under subsection (a), disputes the claim pursuant to subsection (c)(4), does not respond to the claimant's notice of claim within the time stated in subsection (c), does not commence or complete the work on the alleged construction defect on the date specified in subsection (c)(2) or does not make the payment in the time specified in subsection (c)(3), the claimant may bring an action against the contractor without further notice.
(e) If the claimant rejects the inspection proposal or the settlement offer made by the contractor pursuant to subsection (c), the claimant shall serve written notice of the claimant's rejection on the contractor. After service of the rejection, the claimant may bring an action against the contractor without further notice. The claimant may alternatively elect an arbitration process pursuant to K.S.A. 5-201 et. seq., and amendments thereto. Failure to give the notice required by this subsection shall not require the dismissal of the action under subsection (a) of K.S.A. 60-4702, and amendments thereto.
(f) If the claimant elects to allow the contractor to inspect the dwelling in accordance with the contractor's proposal pursuant to subsection (c)(1) the claimant shall notify the contractor and shall provide the contractor and its agents access to the claimant's dwelling during normal working hours to inspect the premises and the claimed defect to determine the nature and cause of the alleged defects and the nature and extent of any repairs or replacements necessary to repair the alleged defects. Such inspection shall occur within 30 days of the claimant's notification to the contractor under this section.
(g) Within 30 days following completion of the inspection, the contractor shall serve on the claimant a written:
(1) Offer to remedy the construction defect at no cost to the claimant, including a report of the scope of the inspection, the findings and results of the inspection, a description of the additional construction necessary to remedy the defect, a specification of the date when the contractor proposes to commence the work and the date the work will be completed;
(2) offer to compromise and settle the claim by monetary payment including a specification of the amount of the payment and the date the payment will be made; or
(3) statement that the contractor will not proceed further to remedy the defect.
(h) If a claimant accepts a contractor's offer made pursuant to subsection (g)(1) or (g)(2) and the contractor does not proceed to remedy the construction defect or make the monetary payment within the agreed timetable, the claimant may bring an action against the contractor without further notice.
(i) If the contractor does not respond within the time period specified by subsection (g) or a claimant receives a written statement that the contractor will not proceed further to remedy the defect, the claimant may bring an action against the contractor without further notice.
(j) If the claimant rejects the offer made by the contractor to either remedy the construction defect or to make the monetary payment, the claimant shall serve written notice of the claimant's rejection on the contractor. After service of the rejection the claimant may bring an action against contractor without further notice.
(k) Any claimant accepting the offer of the contractor to remedy the construction defects shall do so by serving the contractor with a written notice of acceptance no later than 30 days after receipt of the offer.
(l) If a claimant accepts a contractor's offer to repair a defect described in a notice of claim, the claimant shall provide the contractor and its agents reasonable access to the claimant's dwelling during normal working hours to perform and complete the construction by the timetable stated in the offer.
(m) Absent good cause, the contractor's failure to respond in good faith to the claimant's notice of claim shall preclude the contractor from asserting that the claimant did not comply with the provisions of this act.
History: L. 2003, ch. 74, § 4; July 1.
(b) Such notice provided to an insurer:
(1) Constitutes the making of a claim under the policy; and
(2) requires the contractor, subcontractor and the insurer to perform any obligations or duties required by the policy upon the making of a claim.
History: L. 2003, ch. 74, § 5; July 1.
(b) Such notice shall be in substantially the following form: Kansas law contains important requirements you must follow before you may file a lawsuit for defective construction against the contractor who constructed your home. Ninety days before you file your lawsuit, you must deliver to the contractor a written notice of any construction conditions you allege are defective and provide your contractor the opportunity to make an offer to repair or pay for the defects. You are not obligated to accept any offer made by the contractor. There are strict deadlines and procedures under state law, and failure to follow them may affect your ability to file a lawsuit.
History: L. 2003, ch. 74, § 6; July 1.
(a) The name, license number if applicable, business address and telephone number of each subcontractor who performed any work related to the construction of the dwelling; and
(b) a brief description of the work performed by each subcontractor identified pursuant to this section.
History: L. 2003, ch. 74, § 7; July 1.
(b) A property manager shall not accept anything of value given in exchange for encouraging or discouraging the association that such property manager manages to file a claim for damages arising from a construction defect.
(c) A member or officer of an executive board of an association shall not accept anything of value given in exchange for encouraging or discouraging the association of which such person is a member or officer of the executive board to file a claim for damages arising from a construction defect.
(d) A person who willfully violates this section shall be guilty of a class C nonperson misdemeanor.
History: L. 2003, ch. 74, § 8; July 1.
(1) Upon a vote of the units' owners to which at least a majority of the votes of the members of the association are allocated; and
(2) upon a vote of the executive board of the association.
(b) An association or an attorney for an association shall not employ a person to perform destructive tests to determine any damage or injury to a unit, common element or limited common element caused by a construction defect unless:
(1) The person performing the tests is someone in the business of performing such tests and analysis;
(2) the person performing the tests has provided a written schedule for repairs;
(3) the person performing the tests is required to repair all damage resulting from such tests in accordance with state laws and local ordinances and codes relating thereto; and
(4) the association or the person so employed obtains all permits required to conduct such tests and to repair any damage resulting from such tests.
(c) An association may commence an action only upon a vote or written agreement of the owners of the units to which at least a majority of the votes of the members of the association are allocated. In such a case, the association shall provide written notice to the owner of each unit of the meeting at which the commencement of an action is to be considered or action is to be taken within 21 calendar days before the meeting.
(d) In the absence of a contractual provision to the contrary, the executive board of an association, without giving notice to the units' owner's, may employ a contractor and such other persons as are necessary to make such repairs to a unit or common element within the common-interest community as are required to protect the health, safety and welfare of the units' owners.
History: L. 2003, ch. 74, § 9; July 1.
History: L. 2003, ch. 74, § 10; July 1.