Before You Sue Your Builder or Remodeler in Arizona: The Purchaser Dwelling Act

Arizona homeowners with a defective roof, a cracked foundation, or a remodel that failed within a year tend to follow the same course. They call the contractor and hope that contractor will address it…until the contractor stops responding. Then they call an attorney and demand to sue. The instinct to file suit may be right, but the timing may be wrong, because Arizona does not let a purchaser file a construction defect suit until a statutory process has run, and the statute penalizes the owner who skips it.

What the Act requires

The Purchaser Dwelling Act, A.R.S. § 12-1361 through § 12-1366, provides that a purchaser must first comply with the Act before filing a dwelling action. The exception is narrow. It reaches only claims for alleged construction defects involving an immediate threat to the life or safety of persons occupying or visiting the dwelling, and it excuses compliance as to all the requirements under the statute as to those types of claims only, rather than as to the rest of the action.

Compliance under § 12-1363 means a written notice to the seller (language used in the statute, think contractor also, as is outlined below), by certified mail, return receipt requested, describing the defects in what the statute calls reasonable detail. Section 12-1363 defines that term. A notice must include an itemized list that describes each alleged construction defect with sufficient detail to allow the seller or the seller's construction professional to identify it, the location where the owner observed each defect in each dwelling the notice covers, the impairment to the dwelling that each defect has caused or is reasonably likely to cause if it is not repaired or replaced, and the street address of each dwelling the notice covers. A notice that fails to provide as much may not satisfy the statute. What follows is an inspection right that runs to the seller and to the seller's construction professional, a set period in which the seller must respond to the notice in writing, and, if the seller/contractor elects to repair, a repair period the owner must accommodate.

Only after that process runs may the owner file a lawsuit against the seller/contractor. The statute tolls the limitations and repose periods, or the periods in which you have to file a civil action (including section 12-552), while the notice and inspection/repair process is underway and for a short period after the repair is substantially complete, which is the owner's protection against running out of time by the seller's or contractor's own delay. Note, the tolling reaches only the defects described by the owner in the notice in reasonable detail.

Section 12-1366 of the Act also places several categories outside the Act, including personal injury, death, damage to property other than a dwelling, and common law fraud. Whether the Act reaches a particular dispute, and what a notice must contain to satisfy it, are questions to address in a meeting with Patrick Nackley.

It is not only for new homes

The Act reads as a builder's statute, for new construction, but the definitions in § 12-1361 of the Act reach further.

A construction defect is a material deficiency in the design, construction, manufacture, repair, alteration, remodeling, or landscaping of a dwelling, resulting from a violation of the construction codes applicable to the dwelling, the use of defective materials, products, components, or equipment, or a failure to adhere to generally accepted workmanship standards in the community. Material deficiency is itself a defined term, and it sets a threshold the claimed defect must meet.

A seller is any person, firm, partnership, corporation, association, or other organization engaged in the business of designing, constructing, or selling dwellings, and the definition expressly includes construction professionals. A construction professional is an architect, contractor, subcontractor, developer, builder, builder vendor, supplier, engineer, or inspector performing or furnishing the design, supervision, inspection, construction, or observation of the construction of any improvement to real property. The same definition excludes a real estate broker or salesperson who provides services in connection with the resale of a dwelling after its initial sale.

The owner who hired a remodeler to redo a kitchen, and now has a kitchen that leaks, may be a purchaser with a dwelling action, whether or not anyone involved has heard the phrase. The statute does not settle that question on its face, because a dwelling action runs against the seller of a dwelling and a remodeler may never have sold anything. Whether your claim is exclusively a dwelling action (most actions are not) is a question to address at a meeting with Patrick Nackley.

The penalty for skipping the notice provisions in the Act

Section 12-1363 of the Act provides that if the purchaser fails to comply before bringing a dwelling action, the action shall be dismissed. That is a mandatory word. It continues. If the dismissal comes after the applicable statute of limitations or the statute of repose has run, any later dwelling action is time barred as to the seller and the seller's construction professional involved in the construction or design of the dwelling. An owner who files first and learns about the requirements in the Act from the contractor's motion to dismiss may, in the worst case, have converted a valid claim into no claim at all.

Section 12-1363 of the Act also requires a purchaser who files a contested dwelling action to file an affidavit with the complaint, under penalty of perjury, attesting that the purchaser has read the entire complaint, agrees with all of its allegations and facts, and, unless a statute or rule authorizes it, is not receiving and has not been promised anything of value in exchange for filing the action. The statute does not state what happens when that affidavit is missing. Patrick will review the notice history and the limitations period with you before any complaint is filed.

The fee provision cuts both ways

Section 12-1364 allows the court to award reasonable attorney fees and taxable costs to the prevailing party with respect to a contested issue, and it defines prevailing by comparison to what the seller/contractor offered before suit. So, if a contractor offers a cash settlement to complete the necessary repairs, an owner must prevail with a higher award, or that owner will not be awarded his or her reasonable attorney fees under this section of the Act. A purchaser prevails on an issue only if the relief obtained is more favorable than the repairs, replacements, and offers the seller made before the purchaser filed. If it is not, the seller is the prevailing party and the owner can be ordered to pay the seller's fees. Of note, the award is discretionary, and the court must weigh the seller's repairs and offers against the purchaser's response to them in setting a reasonable fee. In a contested dwelling action involving a single purchaser, the court may add reasonable expert witness fees. That provision does not reach an action involving more than one purchaser, or an action consolidated with another dwelling action.

That makes the decision to accept or reject a repair offer one of the most consequential decisions in the case, and it can be made under a deadline, on incomplete information, with the other side's expert on site. It is a decision not taken lightly, and therefore it is one to make in consultation with Patrick.

Associations and common areas

The Act's definition of a dwelling includes common areas and improvements owned or maintained by an association or by members of an association. The statutory route for an association, though, runs through a different chapter. The Arizona Supreme Court held on July 29, 2026, that A.R.S. § 33-2002, part of the Homeowners' Association Dwelling Actions statutes in Title 33, authorizes an association to bring a dwelling action for construction defects in common areas it owns and in unit exteriors it does not own, without privity and without ownership of the units. Gallery Community Association v. K. Hovnanian at Gallery, LLC, No. CV-24-0252-PR (Ariz. July 29, 2026). The same decision held that the Purchaser Dwelling Act does not itself authorize a cause of action, and § 33-2002 carries procedural conditions of its own. An association that files a civil action without completing the notice process has the same problem an individual owner does, multiplied by the number of units. Which statutes govern a given association claim is a question to address at a meeting with Patrick.

What the process is for

Read from the owner's side, the Act may appear to be an obstacle. Handled correctly, it can be leverage. The notice requires the seller/contractor to respond in writing within a set period, and if the seller does not respond, the purchaser may then proceed with a suit. Section 12-1363 of the Act also provides that all parties' conduct during the repair or replacement process may be introduced in a later dwelling action, and that repair or replacement efforts by the seller or the seller's construction professional are not settlement communications and are admissible. A well drafted notice, served on the right parties, with the defects described in the detail the statute requires, may produce either a repair the owner controls or a record that supports the filing of a lawsuit and the attorney fee application later. A poorly drafted notice may produce a dismissal. Patrick will review the governing documents, the contract, and the defect history before any notice is authored.

Consult a licensed professional before making any oral or written communications to a seller or contractor under the Act.

Nackley Law represents Arizona property owners and associations in construction defect matters, from the statutory notice through trial. Contractor and builder disputes are considered on their merits regardless of amount.