Construction Defect Demand Letter - Tennessee

CONSTRUCTION DEFECT DEMAND LETTER

STATE OF TENNESSEE

VOLUNTARY RESIDENTIAL NOTICE, INSPECTION OFFER, AND SETTLEMENT DEMAND

SENT BY ☐ CERTIFIED MAIL ☐ CONTRACT-REQUIRED METHOD ☐ OTHER: [METHOD]

[DATE]

[BUILDER / CONTRACTOR / OTHER RECIPIENT]

[ADDRESS]

[CITY, STATE ZIP]

Tennessee Contractor License No., if applicable: [NUMBER / UNKNOWN]

Re: RESIDENTIAL CONSTRUCTION-DEFECT NOTICE AND DEMAND
Property: [PROPERTY ADDRESS]
Owner: [OWNER NAME]
Contract / Purchase Date: [DATE]
Claimed Substantial Completion: [DATE / UNDER REVIEW]

Dear [NAME]:

This firm represents [OWNER NAME] regarding alleged defects at the residential property identified above. This letter describes the conditions presently known, offers a reasonable opportunity to inspect, requests a written repair or payment proposal, and seeks resolution without litigation.

This is not labeled a mandatory notice under T.C.A. Chapter 66-36. Since the 2020 revision, that chapter's covered action concerns damage to or loss of commercial property. In Simpkins v. John Maher Builders, Inc., No. M2021-00487-COA-R3-CV (Tenn. Ct. App. May 4, 2022), the Tennessee Court of Appeals held Chapter 66-36 inapplicable to claims concerning a newly constructed residential home. Sections 66-36-104 and 66-36-105 do not exist in the current chapter.

Do not use this residential form for a commercial-property claim. Before service, Tennessee counsel must review the contract, express warranties, arbitration clause, insurance conditions, local requirements, and any other notice or cure procedure. Those terms may require different content, recipients, delivery methods, or deadlines.

I. COVERAGE AND DEADLINE REVIEW

A. Residential classification and other procedures

No universal 60-day residential response period is imposed by Chapter 66-36. Insert a response date that is reasonable for the dispute and consistent with every controlling agreement and deadline.

B. Claim-specific limitation periods

Tennessee does not use one limitation period for every construction-defect theory. Courts classify a claim by its legal basis and the gravamen of the alleged injury, not merely the label used in a letter or complaint.

Simpkins applied the three-year property-injury period to the homeowners' claims seeking damages for injury to their real property, while separately recognizing that pleaded contract and contract-based express or implied warranty claims fell under the six-year contract classification. It also held that sufficiently pleaded fraudulent concealment may toll accrual for a concealed condition. The decision does not create a blanket three-year discovery period, does not convert every negligence claim into a one-year claim, and does not make concealment automatic.

For each proposed claim, counsel must identify the duty, injury, requested relief, accrual event, actual or constructive notice, any concealment, contract language, tolling agreement, and other applicable statute. A voluntary demand does not itself toll or extend a deadline.

C. Four-year construction statute of repose

T.C.A. § 28-3-202 generally requires covered actions, arbitrations, and other binding proceedings arising from specified deficiencies in the design, planning, supervision, observation, or construction of an improvement to real property to be brought against a person performing or furnishing that work within four years after substantial completion.

The surrounding provisions materially qualify that rule:

• Under § 28-3-203, if the covered injury occurs during the fourth year after substantial completion, the proceeding must be brought within one year after the injury and, in all events, within five years after substantial completion.
• Section 28-3-204 does not extend a shorter statutory or contractual period and does not create a cause of action.
• Section 28-3-205 restricts the defense for a person in actual possession or control of the improvement when the deficiency proximately causes the injury or death. It also makes the defense unavailable to a person guilty of fraud in furnishing the covered work or who wrongfully conceals the cause of action.

Identify the allegedly deficient activity, protected recipient, substantial-completion evidence, injury date, ordinary limitation period, possession or control, and any properly supported fraud or wrongful-concealment issue before calculating a final deadline.

D. New-home implied warranty

In Dixon v. Mountain City Construction Co., 632 S.W.2d 538 (Tenn. 1982), the Tennessee Supreme Court recognized implied protections concerning good workmanship, materials, and habitability in the builder-vendor sale of a newly constructed home when the written agreement is silent. Tennessee decisions also explain that parties may use written warranty terms or an adequately disclosed disclaimer to alter those implied terms.

Do not assume the Dixon doctrine applies to an existing-home renovation, repair contract, detached component, later purchaser, non-builder seller, or every construction participant. Counsel must analyze the type of transaction, identity of the builder-vendor, buyer status, written contract, express warranty, disclaimer, notice, breach, causation, and damages. The former version's separate Hartley citation was not Tennessee authority and has been removed.

E. Contractor licensing

Current Tennessee Department of Commerce and Insurance guidance states that T.C.A. § 62-6-103 requires a contractor's license for covered projects costing $25,000 or more. License classification and monetary limit must match the project, and statutory exemptions or separate specialty and local requirements may apply.

Section 62-6-103(b) does not simply declare every agreement unenforceable. For a contractor covered by the chapter who failed to maintain the required license, it limits the contractor's court recovery to actual documented expenses proved by clear and convincing evidence. The Tennessee Supreme Court applied that rule in Kyle v. Williams, 98 S.W.3d 661 (Tenn. 2003). Determine the project's total cost, statutory contractor status, license classification, monetary limit, license dates, exemptions, permits, and local requirements before alleging a licensing violation or consequence.

II. PROPERTY, PROJECT, AND PARTY INFORMATION

Recipients

III. DESCRIPTION OF ALLEGED DEFECTS

Describe observed facts rather than unsupported conclusions. Identify the governing code edition, local amendment, contract specification, manufacturer instruction, or professional standard before alleging a violation. A model code or industry publication is not automatically binding on every project.

DEFECT #1: [TITLE]

Location: [SPECIFIC LOCATION]

Observed condition: [WHAT WAS OBSERVED, WHEN, BY WHOM, AND HOW IT HAS PROGRESSED]

Alleged cause or deficient work: [FACTUAL AND EXPERT BASIS]

Resulting damage or loss of use: [DESCRIBE]

Recipient believed responsible and scope: [NAME / ROLE / WORK]

Potential governing requirement, subject to counsel confirmation:

☐ Contract plan or specification: [IDENTIFY]

☐ Express warranty term: [IDENTIFY]

☐ Implied new-home warranty: [DIXON ANALYSIS]

☐ State or local code in effect when work occurred: [IDENTIFY]

☐ Manufacturer installation instruction made applicable to this work: [IDENTIFY]

☐ Professional or trade standard: [IDENTIFY AND SUPPORT]

Date first observed: [DATE]

Notice or inquiry prompted on: [DATE / FACTS]

Available evidence: [PHOTOGRAPHS / REPORT / TEST / ESTIMATE / CORRESPONDENCE]

Estimated repair scope and cost: [SCOPE] / $[AMOUNT OR UNDER INVESTIGATION]

DEFECT #2: [TITLE]

[REPEAT THE FORMAT ABOVE FOR EACH CONDITION]

IV. SUMMARY OF CLAIMED LOSS

This form assumes no automatic entitlement to attorney fees, expert fees, consequential damages, enhanced damages, or punitive damages. Demand such relief only when Tennessee counsel identifies current authority and a good-faith factual basis.

V. POTENTIAL CLAIMS

Assert only theories matched to the parties, transaction, contract, injury, and evidence.

Owner presently contends that: [INSERT THE FACT-SPECIFIC THEORIES APPROVED BY TENNESSEE COUNSEL].

Nothing in this form should be read as alleging fraud, concealment, a code violation, professional negligence, or entitlement to enhanced relief without adequate investigation and a good-faith basis.

VI. VOLUNTARY INSPECTION AND RESPONSE REQUEST

Owner offers a reasonable opportunity to inspect the identified conditions. Please contact:

[CONTACT NAME]

[ADDRESS]

[PHONE / EMAIL]

Please identify proposed dates, attendees, experts, requested access areas, testing, sampling, and any destructive work. No destructive testing is authorized by this letter alone. Obtain a separate written protocol addressing documentation, samples, restoration, insurance, safety, and responsibility for damage.

Please respond by [REASONABLE DATE SELECTED AFTER CONTRACT AND DEADLINE REVIEW] and state:

1. Whether an inspection is requested and the proposed schedule;
2. Whether each alleged condition is accepted, disputed, or under investigation;
3. Whether you offer to repair, pay monetary compensation, or both; and
4. The proposed scope, responsible licensees, permits, schedule, testing, warranty, payment terms, and requested release.

This voluntary response request does not state that silence creates liability, waiver, an adverse inference, or forfeiture of a defense.

VII. PRESERVATION AND DOCUMENT EXCHANGE

Please preserve reasonably anticipated evidence concerning the project and alleged defects, including:

• Contracts, subcontracts, change orders, plans, specifications, and shop drawings
• Permits, inspection records, correction notices, and occupancy documents
• Daily logs, photographs, testing, quality-control, and commissioning records
• Communications with the owner, designers, contractors, subcontractors, and suppliers
• Product data, installation instructions, warranties, and samples
• Payment, insurance, credential, and claim records
• Records supporting substantial completion and license status

Owner will likewise preserve reasonably available evidence. Counsel should tailor this request to the dispute and governing preservation law; this paragraph does not itself establish sanctions or an adverse inference.

VIII. PROPOSED RESOLUTION

Subject to inspection and a complete written agreement, Owner proposes:

Option A — Repair:

1. Agreed repair scope, plans, responsible professionals, and materials: [DETAILS]
2. Permits, inspections, testing, and closeout documents: [DETAILS]
3. Start and completion dates: [DATES]
4. Access, protection, temporary conditions, and restoration: [DETAILS]
5. Written repair warranty: [TERMS TO BE NEGOTIATED]
6. Supported additional payment: $[AMOUNT / BASIS]

Option B — Monetary Resolution:

Payment of $[AMOUNT] under a signed agreement addressing allocation, releases, payment timing, and other negotiated terms.

Other proposal: [DESCRIBE]

IX. CONCLUSION

Please provide the requested written response by [DATE]. Owner reserves all rights, claims, and remedies, subject to every defense and deadline. This letter does not extend, toll, revive, waive, or stipulate any limitation, repose, contract, warranty, arbitration, insurance, or claim-presentation period.

Respectfully submitted,

[LAW FIRM NAME]

By: _________________________________

[ATTORNEY NAME]

Tennessee Board of Professional Responsibility No. [NUMBER]

[ADDRESS]

[CITY, STATE ZIP]

[TELEPHONE]

[EMAIL]

Attorneys for [OWNER NAME]

ENCLOSURES:

☐ Photographs

☐ Expert or inspection report

☐ Repair estimate

☐ Contract, plans, or warranty excerpts

☐ Correspondence history

☐ Other: [DESCRIBE]

ATTORNEY COMPLETION CHECKLIST

• ☐ Confirm that the property is residential; use a commercial-specific process if Chapter 66-36 applies.
• ☐ Review every contract, warranty, arbitration, insurance, and notice requirement.
• ☐ Calculate ordinary limitation and construction-repose periods independently.
• ☐ Preserve proof of accrual, inquiry notice, substantial completion, injury, and concealment issues.
• ☐ Analyze Dixon only for an eligible builder-vendor new-home transaction.
• ☐ Confirm contractor classification, monetary limit, license dates, permits, and local requirements.
• ☐ Identify the actual code edition and local amendments governing the work.
• ☐ Remove every claim, remedy, fee, deadline, or consequence lacking current authority and factual support.

SOURCES AND REFERENCES

• Tennessee Code access page: https://www.tncourts.gov/Tennessee%20Code
• 2020 Tenn. Pub. Acts, ch. 749: https://publications.tnsosfiles.com/acts/111/pub/pc0749.pdf
• T.C.A. Chapter 66-36 current-text mirror: https://law.justia.com/codes/tennessee/title-66/chapter-36/
• T.C.A. §§ 28-3-104, 28-3-105, and 28-3-109 current-text mirror: https://law.justia.com/codes/tennessee/title-28/chapter-3/part-1/
• T.C.A. §§ 28-3-202 through 28-3-205 current-text mirror: https://law.justia.com/codes/tennessee/title-28/chapter-3/part-2/
• T.C.A. § 62-6-103 current-text mirror: https://law.justia.com/codes/tennessee/title-62/chapter-6/part-1/section-62-6-103/
• Simpkins v. John Maher Builders, Inc., No. M2021-00487-COA-R3-CV (Tenn. Ct. App. May 4, 2022): https://www.tncourts.gov/sites/default/files/david.simpkins.opn_.pdf
• Henry v. Nova, Inc., No. 03A01-9804-CH-00121 (Tenn. Ct. App. Aug. 17, 1998) (discussing Dixon and written warranty/disclaimer treatment): https://www.tncourts.gov/sites/default/files/OPINIONS/TCA/PDF/983/henryp.pdf
• Kyle v. Williams, 98 S.W.3d 661 (Tenn. 2003): https://www.tncourts.gov/sites/default/files/OPINIONS/TSC/PDF/031/kyle.pdf
• Tennessee Board for Licensing Contractors laws: https://www.tn.gov/commerce/regboards/contractors/rules-and-laws/laws.html
• Tennessee contractor-license threshold guidance: https://www.tn.gov/commerce/fire/residential-permits/removables.html

The official Tennessee Code is provided through a state-linked Lexis interface that did not expose complete section text through the session research tool. Exact current section text was therefore checked through the cited 2024 consolidated-code mirrors after official-source attempts; current official Tennessee acts, agency guidance, and appellate opinions independently confirmed the operative framework.