A homeowner notices water intrusion behind freshly installed siding. A contractor opens an email to find a formal complaint about work completed two years ago. The instinct for both parties is the same: call a lawyer and file suit. Georgia law says not yet. Before any construction defect lawsuit can proceed, both sides must work through a mandatory pre-litigation process established by the Resolution of Construction Defects Act, O.C.G.A. § 8-2-35 et seq., commonly called the Right to Repair Act. Skipping that process or fumbling a deadline inside it doesn’t just delay the case. It can eliminate rights entirely.
The Act was designed to give contractors a chance to fix problems before litigation begins, but it operates symmetrically. Property owners can lose recovery caps and attorney’s fees by mishandling an offer. Contractors can waive defenses by failing to respond in time. At Reed Leeper, P.C., we represent both sides of these disputes, and the procedural traps in this statute are where cases are won or lost before they ever reach a courtroom.
What the Georgia Right to Repair Act Actually Does
The Act took effect in 2004 and created a structured notice and response framework that parties must exhaust before a construction defect lawsuit can be filed. It isn’t optional, and it isn’t a formality. The process governs claims involving single-family homes, duplexes, multifamily units, condominiums, and common areas associated with those properties. Commercial properties fall outside its scope, as do claims where the defect caused personal injury or death.
The definition of “contractor” under the Act is broader than most people assume. It covers everyone required to hold a license under Georgia’s contractor licensing law, Chapter 41 of Title 43, including developers, renovation contractors, repair contractors, and their subcontractors. Architects and others not required to hold a contractor’s license under Chapter 41 are excluded. Insurers who assume a contractor’s obligations also fall within the Act’s reach. If you performed, supervised, or insured covered residential construction work, the Act likely applies to you.
The Pre-Contract Obligation Contractors Often Miss
The Act’s obligations don’t begin when a defect appears. They begin before construction starts. Georgia law requires contractors to include conspicuous written notice in the contract itself, informing the homeowner that the Right to Repair Act governs defect claims and that the homeowner must serve a 90-day pre-suit notice before filing. A contract that omits this disclosure violates the Act from the moment it’s signed.
On projects valued over $2,500, contractors must also provide a written warranty before work begins, specifying what’s covered, how long coverage lasts, and how to submit a claim. Both obligations represent concrete compliance gaps that contractors can close before they ever receive a defect notice. Addressing them in standard contract templates is far less costly than litigating them later in Cobb County Superior Court.
The Notice & Response Timeline Both Sides Must Follow
When a defect surfaces, the property owner must serve a written notice of claim on the contractor at least 90 days before filing suit. That notice must go out by certified mail or overnight delivery with return receipt requested, describe the defect in sufficient detail, and attach any available inspection reports, photographs, or expert opinions the homeowner already has. A vague letter doesn’t satisfy the requirement.
Once the contractor receives the notice, a 30-day response window opens. The contractor must respond in writing by either offering to settle the claim through monetary payment, repairs, or a combination without inspection, or by requesting an inspection of the alleged defect. A contractor who outright rejects the claim without doing either, or who simply fails to respond within 30 days, hands the homeowner the right to proceed to litigation immediately. When the contractor requests an inspection, the homeowner must provide access within 30 days. After the inspection, the contractor has 14 days to deliver a written settlement offer or a written statement that it won’t remedy the defect. The homeowner then has 30 days to respond in writing.
The Deemed-Accepted Trap & the Supplemental Offer
Silence from the homeowner after receiving a contractor’s written offer isn’t a rejection. Under the Act, it’s acceptance. In Bellagio Pools, LLC v. Marino, a Georgia court ordered homeowners to grant access for repairs after they failed to respond to the contractor’s written offer within the 30-day window. The court treated the offer as accepted by operation of law. Property owners who assume they can ignore an offer they find inadequate are creating a legal obligation they didn’t intend to accept.
If the homeowner rejects the offer in writing, the contractor gets a second chance: a 15-day window to submit a supplemental offer. That supplemental offer carries the same 30-day response requirement. The homeowner must reject it in writing or it, too, is deemed accepted.
The financial stakes extend beyond the immediate dispute. If a homeowner rejects an offer that a court later determines was “reasonable,” the homeowner’s recovery is capped at whichever is lower: the fair market value of the rejected offer or the actual cost of repair. The homeowner also loses the right to recover attorney’s fees for litigation costs incurred after the rejection. Reasonableness is determined by the trier of fact, meaning a jury decides in hindsight whether turning down that offer was a mistake. This is a strategic decision point, not a procedural checkbox.
Deadlines That Can’t Be Recovered: Limitations & Repose
The Act’s notice process takes time, but the statute doesn’t pause the clock on the underlying claim while that process runs. The Act doesn’t toll the applicable statute of limitations. If a limitations deadline would expire during the 90-day notice period, the claimant can file suit to preserve the claim, but the court must immediately stay the action until the notice process concludes. Waiting until the last moment to send the notice of claim is a serious miscalculation.
Separate from the limitations period is Georgia’s statute of repose. Under O.C.G.A. § 9-3-51, no claim arising from a deficiency in the design, planning, supervision, or construction of an improvement to real property may be brought more than 8 years after substantial completion of the work. The notice process doesn’t extend this outer boundary. A claim filed on day one of year nine is time-barred regardless of how diligently either party followed the Act’s procedures.
The correct legal theory also affects which limitations period governs. Tort claims for construction defects generally carry a 4-year statute of limitations. Claims based on a written construction contract carry 6 years. Choosing the right theory isn’t academic. It determines how much runway the client actually has.
How Construction Disputes Reach Cobb County Superior Court
When the pre-litigation process doesn’t produce a resolution, the dispute moves to litigation. For Marietta-area contractors and property owners, that means Cobb County Superior Court. The procedural record compiled during the notice process, including every offer made, every offer rejected, and every deadline met or missed, becomes part of the evidentiary record at trial. How a party handled the statutory process often shapes what a jury thinks of them before the first witness takes the stand.
The Act also doesn’t prevent contractors from pursuing indemnification or contribution from subcontractors or other responsible parties once the notice process is complete. Those construction disputes are frequently pursued in parallel once litigation begins.
The Right to Repair Act is a procedural framework with real financial consequences for any party who misreads a deadline or underestimates what a written offer acceptance means. If you’re dealing with a construction defect claim in the Marietta area, we can help you navigate the notice process and protect your position if the dispute proceeds to court. Reach us at (470) 837-6002.