Amendment 34 on the Nov. 2 election ballot is not deserving of inclusion in the state's constitution and should be defeated.
In essence, the amendment is aimed at reversing House Bill 1161, which was passed by the Legislature in 2003 and placed limits on lawsuits about construction defects. The law requires homeowners to give construction professionals a period of time to correct the defects or offer financial settlement before the homeowner pursues legal action. The law also limits recovery to the value of the property, the cost of replacement or the cost of repair, whichever is less. It caps extra damages -- temporary housing and legal costs, for example -- at $250,000. Before the law, homeowners could seek up to triple their actual damages.
Homebuilders advocated for the bill's passage. Trial lawyers opposed it, as did the Steamboat Pilot & Today. We argued that the bill took away important legal remedies available to property owners and offered protections to one industry that are not available to others.
Amendment 34 would nullify most of House Bill 1161 and prevent similar legislation in the future. The amendment would prohibit "laws that limit or impair a property owner's right to recover damages caused by a failure to construct an improvement in a good and workmanlike manner." The amendment would not affect the "cooling off period" during which homeowners and property owners try to reach agreement and avert a lawsuit.
Advocates for the amendment's passage argue that House Bill 1161 infringes on property rights by restricting homeowners' ability to sue for damages they feel appropriate. They argue House Bill 1161 protects developers and builders at the expense of homeowners.
Opponents of Amendment 34 say House Bill 1161 has been in place for little more than a year, and that's not enough time to judge its effectiveness. (Homebuilder organizations say anecdotal evidence shows the bill is working because the number of construction-defect lawsuits has fallen.)
Opponents also note the language in the amendment does not differentiate between a construction professional and a homeowner making his or her own improvements. That, opponents argue, means a property owner could be liable for damages caused when a sprinkler system the property owner installed years ago on a home they have since sold malfunctions and floods the home.
Other opponents say Amendment 34 will drive up housing prices because of increased insurance and legal costs associated with construction.
In reality, it is impossible to know for sure what the ramifications of Amendment 34 will be. We're skeptical whether Amendment 34 will cause insurance and legal costs to increase, because they certainly did not decrease when House Bill 1161 was approved. And the courts will have to sort out the amendment's language to determine whether homeowners completing small home-improvement projects can be held liable for construction defects years later and whether there is any reasonable cap that can be placed on such liability.
We would argue that amendments to the constitution that the courts must later define are not worthy of the constitution in the first place.
We did not support House Bill 1161. But the way to remedy this legislation is through the legislature itself. This niche issue has no place in Colorado's Constitution, and we urge residents to vote no on Amendment 34.