What to Do?

Minimum Requirements: The bare minimum a Builder must do to comply with Title 7 is discussed in the following section titled "The Absolute Least."  This section discusses the opportunities Builders have to more pro-actively approach Title 7.

Opportunities: In addition to merely doing the absolute least to comply with Title 7, Builders have the option to make use of various opportunities created by Title 7. As examples:

• Establish Written Maintenance Requirements: Title 7 requires the Buyer to follow all reasonable written maintenance requirements (California Civil Code Section 907). Thus, a Builder has an opportunity to provide a Buyer with a maintenance manual which obligates the Buyer to perform specific recommended maintenance obligations and practices which are intended to avoid a failure of a Residence to satisfy the Performance Standards.  Title 7 provides that the failure of a Buyer to follow reasonable recommended maintenance obligations and practices provided to the Buyer in writing can establish a defense to a claimed violation of the Performance Standards. (Nevertheless, the homeowner is still required to perform "commonly accepted maintenance standards," whatever those standards are determined to be.)
• Enhanced Protection Agreements: There is some room to further define the Performance Standards established by Title 7 by creation of an Enhanced Protection Agreement. A Builder may be able to eliminate some of the ambiguity or vagueness in the Performance Standards by creating their own more precise standards which the Builder expects to satisfy. A Builder may either create its own standards or use currently available standards provided they equal or exceed Title 7's Performance Standards. If a Builder creates standards, those new standards must be recorded as well as provided to Buyers, or else they will not be enforceable (see Recordation of Documents). 

Builders may consider the items discussed in the section titled "Careful Planning."

As courts publish decisions concerning Title 7, our recommendations may change.

It is rather difficult to proceed into the maze of Title 7 implementation without legal advice. What we hope to accomplish with our Title 7 Discussion is to provide some helpful insights for Builders to consider as they read, understand and implement Title 7. No doubt these comments raise additional concerns or questions. As always, we are available to assist our clients with these matters.