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Construction Law

: The South Carolina Construction Law Blog

South Carolina Supreme Court Addresses Right to Cure Act

By Ryan McCabe

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The Plaintiffs in this case brought a class action suit on behalf of themselves and those similarly situated against a plastering company. The complaint alleged defective stucco work on 2,673 homes in a subdivision in Bluffton. In answering the complaint, the plastering company asserted that the Plaintiffs failed to comply with the express provisions of the Notice and Opportunity to Cure Construction Dwelling Defect Act ("Right to Cure Act").

The Right to Cure Act "entitles a contractor or subcontractor to notice of any qualifying construction defect, and the opportunity to cure, before the action is commenced." There are two pertinent provisions to this matter: 1) the stay of action provision which requires the court to stay the proceedings until the claimant has complied with the act, and 2) the notice of claim provision which states that the claimant must serve written notice of the claim to the contractor at least 90 days prior to filing the action with the court. The notice of claim must contain a statement which alleges a construction defect, a description of the claim in reasonable detail to determine the general nature of the defect, and a description of any known results of the defect.

In the present case, the circuit court stayed the action pending compliance with the Right to Cure provisions. The class representative did comply with the notice provision, however the court ultimately found that the class action allegation was incompatible with the Right to Cure Act. On appeal, the South Carolina Supreme Court addressed the issue of whether the Right to Cure Act could be reconciled with Rule 23, SCRP (governing class action law suits).

The court addressed the policy concerns behind the Right to Cure Act: balancing the need for alternative dispute resolution with the protection of homeowners' rights and allowing the parties to resolve construction defect claims without litigation. The act does not require the parties to reach a settlement; it only requires that the would-be plaintiff provide the would-be defendant with notice and a reasonable time to cure the defect prior to commencing litigation.

Next, the court determined that the circuit court erred in finding that the notice provision is only applicable when the plaintiff mistakenly fails to provide notice. One dissenting opinion criticizes the majority for issuing an open invitation for plaintiffs to willfully ignore the act in order to file their claim within the applicable statute of limitations. Essentially, a plaintiff, although aware of the notice provision, could bypass this requirement and file a claim that could later fall into compliance after the court stays the action.

This site and any information contained herein is intended for information purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.

Full post as published by The South Carolina Construction Law Blog on October 09, 2010 (boomark / email).