Construction Defect Demand Letter - New Mexico

NEW MEXICO CONSTRUCTION DEFECT NOTICE AND DEMAND

NOTICE UNDER NMSA 1978, SECTION 42-14-3, IF THE CLAIM IS COVERED

This template is designed for a purchaser's claim against the seller of a newly constructed single-family dwelling covered by the New Mexico Right to Repair Act. The Act does not automatically govern every renovation, commercial project, multifamily property, or claim against a party other than the statutory seller.

Before sending, New Mexico counsel should confirm coverage, the construction contract's dispute-resolution terms, all applicable deadlines, and whether an exception to presuit compliance applies.

Date: [__/__/____]

Delivery method permitted by Section 42-14-3(A):

• ☐ United States Postal Service with delivery confirmation
• ☐ Electronic delivery to: [EMAIL OR ELECTRONIC ADDRESS]
• ☐ Additional courtesy delivery: [METHOD]

To:

[SELLER NAME]

[ADDRESS]

[CITY, STATE ZIP]

Re: Notice of alleged construction defects under NMSA 1978, Section 42-14-3

Purchaser: [NAME]

Dwelling: [STREET ADDRESS]

Original or subsequent owner: [IDENTIFY]

Contract/project: [DESCRIPTION]

Dear [RECIPIENT]:

[LAW FIRM OR SENDER] represents [PURCHASER NAME] concerning the newly constructed single-family dwelling identified above. This letter gives written notice of the alleged defects described below and requests inspection, a written response, and resolution under NMSA 1978, Section 42-14-3.

Section 42-14-3(D) requires the seller to send a written response by certified mail, return receipt requested, within 60 days after receipt of the notice. Based on the documented receipt date, the response date is calculated as [__/__/____], subject to counsel's review and any lawful extension.

1. RIGHT TO REPAIR ACT COVERAGE CHECK

Under Section 42-14-2, the Act applies to a “dwelling” that is a newly constructed single-family housing unit designed for residential use, including systems, components, and improvements that were part of the unit at construction. A “purchaser” includes the original purchaser or a subsequent owner. The statutory “seller” is the party responsible for construction of the dwelling.

Confirm each item before using this as statutory notice:

• ☐ The property is a newly constructed single-family housing unit.
• ☐ The unit is designed for residential use.
• ☐ The claimant is the original purchaser or a subsequent owner.
• ☐ The recipient is the party responsible for construction of the dwelling.
• ☐ The proposed proceeding is a complaint in court or a contractual dispute-resolution mechanism involving an alleged construction defect against that seller.
• ☐ Each alleged defect concerns the construction of the dwelling.

Potential Section 42-14-3(A) exception:

• ☐ Immediate threat to the life or safety of occupants
• ☐ Condition rendering the dwelling uninhabitable
• ☐ Seller refused, after purchaser notice, to repair under an applicable express warranty
• ☐ No exception asserted

Counsel should document the facts supporting any claimed exception. Even when an exception may apply, written notice may remain useful and other contract or procedural requirements may control.

2. PROPERTY AND PROJECT INFORMATION

Other construction professionals:

3. NOTICE IN REASONABLE DETAIL

Section 42-14-2 requires an itemized list describing each alleged defect, the dwelling's street address, and the location in the dwelling where each defect is observed. Complete a separate entry for every alleged defect.

DEFECT 1 — [SHORT TITLE]

Exact location: [ROOM, ELEVATION, SYSTEM, COMPONENT, OR OTHER PRECISE LOCATION]

Observed condition: [DETAILED FACTUAL DESCRIPTION]

Why it is alleged to be deficient: [IDENTIFY CONTRACT TERM, EXPRESS WARRANTY, PLAN, SPECIFICATION, APPLICABLE CODE, INSTALLATION INSTRUCTION, OR TECHNICAL FINDING]

Date first observed: [__/__/____]

Progression: [DESCRIPTION]

Resulting damage or loss: [DESCRIPTION]

Prior notice or repair: [DATE, RECIPIENT, AND RESULT]

Requested repair or replacement: [DESCRIPTION]

Estimated amount: $[AMOUNT OR PENDING]

DEFECT 2 — [SHORT TITLE]

[REPEAT THE DEFECT 1 FORMAT.]

4. SUPPORTING MATERIAL

The following is enclosed or available for inspection:

• ☐ Dated photographs or video
• ☐ Inspection report
• ☐ Engineer, architect, or consultant report
• ☐ Moisture, pressure, or other testing
• ☐ Contract, plans, specifications, and change orders
• ☐ Permits and inspection records
• ☐ Certificate of occupancy
• ☐ Express warranty documents
• ☐ Prior notices and responses
• ☐ Repair estimates
• ☐ Invoices and proof of payment
• ☐ Other: [DESCRIPTION]

5. INSPECTION ACCESS

Under Section 42-14-3(C), the seller and the seller's construction professional may inspect and reasonably test the dwelling. If an inspection is requested, the purchaser will make the dwelling available during normal working hours no later than ten days after receiving the request, subject to reasonable notice and scheduling.

Please identify in writing:

1. the proposed inspection dates and times;
2. all attendees and their roles;
3. the areas and systems to be inspected;
4. each proposed test and whether it is destructive;
5. measures to protect occupants and property; and
6. the plan to restore any opened or disturbed area.

Section 42-14-3(C) requires the seller's construction professional to restore the dwelling within 60 days after testing. The parties should document the pre-test condition, scope of testing, restoration standard, and schedule before destructive testing begins.

Inspection contact: [NAME, PHONE, EMAIL]

6. REQUIRED SELLER RESPONSE

Within 60 days after receiving this notice, please send the purchaser a written response by certified mail, return receipt requested, as required by Section 42-14-3(D).

The response may:

• offer to repair or replace each alleged defect, at the seller's or seller's construction professional's expense;
• offer monetary compensation; or
• invoke a remedy in the construction contract.

Any repair or replacement offer should describe in reasonable detail the proposed work and provide a reasonable estimate of the completion date, as required by Section 42-14-3(E). Please also identify the responsible contractor, license classification, permits, inspections, testing, temporary protection, and written warranty for the proposed work.

Response due: [__/__/____]

Send response to: [NAME AND ADDRESS]

This statutory notice does not itself constitute notice of a claim or occurrence that triggers notice to the seller's liability carrier under Section 42-14-3(B). The seller should obtain independent advice about any separate insurance-notice obligation.

7. PURCHASER'S RESPONSE TO AN OFFER

The purchaser reserves a decision until receiving and reviewing the complete written response.

• ☐ Repair or replacement offer accepted, subject to a signed scope and access agreement
• ☐ Repair or replacement offer rejected in writing or electronically
• ☐ Monetary offer accepted, subject to a signed settlement agreement
• ☐ Monetary offer rejected
• ☐ Contractual remedy requires further review
• ☐ No response received by the statutory response date

Under Section 42-14-3(F), a purchaser who reasonably rejects a repair offer in writing or electronically has complied with the section and may initiate a dwelling action. If an offer is not rejected, the statute requires an opportunity to make the offered repairs or replacements. Any release should precisely identify the noticed defects and claims resolved.

8. PROPOSED RESOLUTION

Option A — Repair or Replacement

• Agreed scope: [DESCRIPTION]
• Responsible licensed entity: [NAME AND LICENSE]
• Permits and inspections: [DESCRIPTION]
• Start date: [__/__/____]
• Estimated completion: [__/__/____]
• Occupant and property protection: [DESCRIPTION]
• Temporary housing or loss-of-use terms: [DESCRIPTION]
• Post-repair testing: [DESCRIPTION]
• Written repair warranty: [TERMS]
• Other payment: $[AMOUNT AND BASIS]

Option B — Monetary Resolution

• Payment: $[AMOUNT]
• Payment date: [__/__/____]
• Repair responsibility after payment: [DESCRIPTION]
• Proposed release scope: [DESCRIPTION]

No settlement should be signed without defining the repair standard, access, permits, inspections, testing, payment, warranties, release scope, and treatment of later-discovered damage.

9. CLAIMS AND DAMAGES FOR COUNSEL REVIEW

Potential theories depend on the actual contract, warranty, parties, transaction, and facts:

• ☐ Breach of an identified written contract provision
• ☐ Breach of an identified express warranty
• ☐ Negligence or professional negligence
• ☐ Qualifying sale-of-goods warranty claim
• ☐ Licensing or code issue based on identified conduct
• ☐ Other: [IDENTIFY]

Potential damages:

Counsel must determine whether each theory and category of damages, fees, costs, interest, or other relief is legally available and factually supported.

10. LIMITATIONS, REPOSE, AND TOLLING

Do not treat warranty periods, statutes of limitation, and the statute of repose as interchangeable.

• Written contract: Section 37-1-3 provides six years for an action founded on a contract in writing.
• Sale of goods: Section 55-2-725 provides four years for breach of a qualifying contract for sale. It should not be applied automatically to construction services or to every construction warranty.
• Construction repose: Section 37-1-27 covers specified property, personal-injury, wrongful-death, contribution, and indemnity actions arising from a defective or unsafe condition of a physical improvement to real property against persons performing or furnishing the listed construction-related work. Its ten-year period runs from the latest of: sufficient completion for intended occupancy or use; actual occupancy or use; or the contractor-established substantial-completion date.
• Express-term exception: Section 37-1-27 does not apply to an action based on a contract, warranty, or guarantee containing express terms inconsistent with that section.
• Right-to-repair tolling: Section 42-14-3(M) tolls Section 37-1-27 and other applicable limitation periods during the repair and replacement process for items specified in the notice.

Counsel should calculate every deadline independently. Sending notice alone should not be assumed to toll a deadline outside the statute's repair-and-replacement language.

11. CONTRACTOR LICENSING

The Construction Industries Division licenses contractors. Under 14.6.3.8 NMAC, an entity acting as a contractor must hold a license, and the license authorizes contracting only in the classification stated on the license and qualifying-party certificate.

Verify the exact contracting entity's name, license status, classification, and qualifying party through the current CID public-license system.

Licensing status does not by itself decide the purchaser's civil claims or remedies. Counsel should separately evaluate the Construction Industries Licensing Act and the facts.

12. SAFETY, MITIGATION, AND RECORDS

The purchaser may take reasonable emergency measures to protect people and property. Before non-emergency alteration, document the condition and evaluate the Act, contract, warranty, inspection, and evidence-preservation consequences.

Please preserve relevant project records and materials, including contracts, subcontracts, plans, specifications, change orders, permits, inspection records, communications, photographs, daily logs, warranty documents, invoices, testing data, insurance information, and prior repair records. Available remedies for missing evidence depend on the facts and governing law.

13. CONCLUSION

Please acknowledge receipt, coordinate any inspection, and provide the written response required by Section 42-14-3(D) no later than [__/__/____]. Direct communications to [CONTACT NAME] at [CONTACT INFORMATION].

Nothing in this letter waives any contract term, claim, defense, remedy, or deadline. No release is effective unless stated in a signed agreement.

Respectfully,

[LAW FIRM OR SENDER NAME]

By: _________________________________

[ATTORNEY OR PURCHASER NAME]

[NEW MEXICO BAR NUMBER, IF APPLICABLE]

[ADDRESS]

[TELEPHONE]

[EMAIL]

ENCLOSURES

• ☐ Defect evidence listed above
• ☐ Contract, plans, specifications, and change orders
• ☐ Express warranty
• ☐ Expert or inspection material
• ☐ Repair estimates
• ☐ Other: [DESCRIPTION]

ATTORNEY REVIEW CHECKLIST

1. Confirm that the property, purchaser, seller, and proposed proceeding fit the definitions in Section 42-14-2.
2. Analyze the three Section 42-14-3(A) exceptions before treating presuit compliance as mandatory or unnecessary.
3. Confirm delivery and preserve proof of receipt; calculate the 60-day seller-response date.
4. Review the complete repair-offer, performance, extension, noncompliance, preserved-remedy, and tolling provisions in Section 42-14-3 before accepting, rejecting, or litigating.
5. Review all contract notice, mediation, arbitration, inspection, warranty, indemnity, and limitation provisions.
6. Determine the applicable claim-specific limitation period, accrual rule, repose treatment, and tolling evidence.
7. Verify the contracting entity's current CID license and classification.
8. Confirm the code editions, permit requirements, and technical standards that governed when the work was performed.

OFFICIAL SOURCES

• New Mexico Right to Repair Act, Laws 2023, Chapter 200 (codified at NMSA 1978, Sections 42-14-1 through 42-14-3): https://www.nmlegis.gov/Sessions/23%20Regular/final/SB0050.PDF
• New Mexico Compilation Commission public-access statutes, Chapter 37: https://www.nmonesource.com/w/nmos/Chapter-37-NMSA-1978-2018.pdf
• New Mexico Attorney General rule identifying the limitation periods in Sections 37-1-3, 37-1-4, and 55-2-725: https://www.srca.nm.gov/parts/title12/12.002.0012.html
• Contractor licensing requirements, 14.6.3 NMAC: https://www.srca.nm.gov/parts/title14/14.006.0003.html
• Construction Industries Division: https://www.rld.nm.gov/construction-industries/

This template is for informational purposes only and does not constitute legal advice. Consult a licensed New Mexico attorney before use.