Imagine purchasing the home of your dreams only to learn that it suffers from construction defects that will cost approximately $40,000 to remedy. To make matters worse, despite having purchased the new build only two years ago, the homebuilder is refusing to make the needed repairs. Left with no option, the homeowner consults with an attorney who is certain that the homebuilder is liable for the defects under breach of implied warranty. The attorney estimates that it will cost roughly $15,000 to litigate the case.

Knowing the home must be repaired, and lacking the necessary funds to do so, the homeowner proceeds with the lawsuit and is ultimately successful, receiving an award of $40,000. However, after all the fees and costs are paid, the homeowner nets only $25,000. As a result, the homeowner is still unable to make the repairs, needing an additional $15,000 to do so.

How could such a harsh result occur? How could the homeowner prove successful in their lawsuit but not be made whole? After all, the prevailing party, having been adjudged to be in the right, should not suffer financially for having to prove the justice of their position. However, this is the unfair result that would occur if SB 1210 is passed this legislative session.

By way of SB 1210, homebuilders seek to deter homeowners from pursuing meritorious claims like the one described above by stripping homeowners of the right to recover their attorneys’ fees following a construction defect lawsuit in which the homeowner prevails. The concept is simple; by precluding the recovery of such fees, wronged homeowners will be financially discouraged from pursing even the most justified construction defect claims.

Awarding attorneys’ fees to the prevailing party discourages the pursuit of weak or frivolous claims. A party that may be held liable for the other side’s attorneys’ fees less frequently abuses the judicial system by bringing meritless lawsuits. If there truly is a desire to cut down on frivolous lawsuits, as opposed to discouraging just claims, homebuilders should have no objection to a prevailing party recouping their fees and costs.

Why should the homebuilder, simply because they have the advantage of superior resources and deeper pockets, be able to avoid accountability for construction defects in the home they built? They should not, and for this reason the Arizona Association of REALTORS® opposes SB 1210.

To join Arizona REALTORS® in its opposition to SB 1210, please reach out to your legislator, let them know that this bill is bad public policy, and encourage them to oppose its passage. To locate your legislator, click here.


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