You've found the water stains on your ceiling. Or the foundation crack that wasn't there last spring. Or the mold blooming behind freshly installed drywall. Whatever the defect, your first instinct may be to call a lawyer and go straight to court.

Slow down.

Before you can file a lawsuit over a construction defect in a South Carolina residential property, the law requires you to follow a specific pre-suit process — one that, if skipped or mishandled, can get your entire case thrown out. That process is governed by the South Carolina Notice and Opportunity to Cure Construction Dwelling Defects Act, S.C. Code Ann. §40-59-810–840. Most attorneys and homeowners simply call it the Right to Cure Act.

This guide explains what the Act is, how it works step by step, how it has been enforced by South Carolina courts, and — critically — how to use it to your advantage.

What Is the Right to Cure Act?

The Right to Cure Act was passed by the South Carolina General Assembly and signed into law in 2003. It was designed as a tort reform measure — a way to reduce costly litigation by requiring homeowners and contractors to communicate before lawyers start filing.

The core idea: before a homeowner can sue a contractor, subcontractor, supplier, or design professional for a construction defect, the homeowner must give that party written notice of the defect and a reasonable opportunity to inspect and remedy it. Only after that process plays out — or breaks down — can a lawsuit move forward.

The Act applies to:

  • Any civil lawsuit or arbitration proceeding for damages related to a dwelling
  • Claims involving the design, construction, condition, or sale of a residential property
  • Claims arising from remodeling work on a dwelling
  • Both the original purchaser and subsequent purchasers of the property

It does not apply to claims for personal injury or wrongful death.

Who Does the Act Cover?

The Act casts a wide net on the contractor side. “Contractor” under the Act includes general contractors, but the notice requirement also extends to subcontractors, suppliers, and design professionals who may have contributed to the defect.

On the claimant side, “homeowner” is defined broadly enough to include subsequent purchasers — meaning if you bought a home from someone else who bought it from the builder, you still have standing to pursue a claim, and you still must comply with the Act’s notice requirements before filing.

This is especially relevant in Charleston’s active real estate market, where older construction defects often surface only after the property changes hands.

The Step-by-Step Process

Step 1: Send Written Notice — At Least 90 Days Before Filing

The Act requires that a claimant serve a written Notice of Claim on the contractor no later than 90 days before filing any lawsuit or initiating any arbitration. This is not optional, and it is not a technicality that courts routinely excuse.

The notice must:

  • Be in writing
  • Be sent by certified mail to the contractor’s last known address (or personally delivered)
  • State that the claimant is asserting a construction defect claim
  • Describe the claim in sufficient detail that the contractor can understand the general nature of the defect
  • Describe the results or consequences of the defect — for example, water intrusion, structural damage, or mold growth

Photographs are not required, but including them strengthens your notice and reduces the chance of a contractor later claiming they didn’t understand what was alleged.

Your attorney should draft the notice — not just to get the form right, but to make strategic decisions about which parties to include, what level of detail to provide, and how to frame the claims.

Step 2: Contractor Has 15 Days to Request Clarification

After receiving your notice, the contractor has 15 days to request clarification about any claim that lacks sufficient detail. This is an important window. If the contractor uses it to ask genuine questions, your attorney must respond appropriately. If the contractor uses it to delay, that becomes part of the record.

Step 3: Contractor Has 30 Days to Respond

Within 30 days of receiving the notice (or receiving clarification, if requested), the contractor must:

  • Inspect the alleged defect at a mutually agreeable time
  • Provide written notice of their election: repair the defect, offer a monetary settlement, deny the claim, or some combination

Failure to respond within 30 days is treated as a denial of the claim — which means the homeowner can proceed to litigation without further waiting.

You must allow the contractor access to your property for inspection during this period. Refusing access can complicate your case.

Step 4: Claimant Has 10 Days to Respond to Any Offer

If the contractor makes an offer — whether to repair, to pay, or both — you have 10 days to respond. You are not required to accept any offer. You can reject it, counter-propose terms, or accept it conditionally.

Importantly, if you do agree to let the contractor make repairs, you have the right to negotiate the terms. An experienced construction attorney will often insist that any repairs be agreed to in writing in advance, that the scope of repairs includes full restoration (not just patching), and that repair work be subject to oversight by an independent construction professional of the homeowner’s choosing — at the contractor’s expense.

Step 5: If No Agreement, File Suit

If the parties cannot reach a settlement within 90 days of the initial notice, the claim is considered denied and the homeowner may proceed with a civil action. The 90-day waiting period tolls (pauses) the applicable statute of limitations and warranty periods, so the clock is not running against you during the pre-suit process.

The Critical Warning: Don’t Repair Before You Notify

Do Not Fix the Defect Before Sending Your Notice.

Courts have dismissed construction defect claims entirely when the homeowner repaired the defect before notifying the contractor. If the alleged defect no longer exists for the contractor to inspect, compliance with the Act may become legally impossible — and your case may be thrown out with no recovery.

This is one of the most important and counterintuitive aspects of the Right to Cure Act, and it has real consequences in South Carolina courts.

In McIntire v. Seaquest Development Company (Ninth Judicial Circuit, 2017), a former Chief Justice of the South Carolina Supreme Court sitting by designation dismissed a homeowner’s construction defect lawsuit after the homeowners substantially completed repairs to their home before notifying the original builder. The court found that by doing so, the homeowners had effectively destroyed the evidence and deprived the contractor of their statutory rights to inspect and cure.

The lesson is unambiguous: if you believe you have a construction defect claim, call an attorney before you call a repairman. Document the defect thoroughly with photographs and written descriptions. Get professional inspections done. But do not hire someone to fix the problem until your legal rights have been properly preserved.

If emergency repairs are absolutely necessary to prevent further damage or address a safety hazard, document everything meticulously before, during, and after those repairs, and consult with an attorney immediately.

How the Right to Cure Act Can Work in Your Favor

Many homeowners are frustrated by the idea of giving the contractor who caused the problem an opportunity to come back and try to fix it. That frustration is understandable. But experienced construction attorneys often find the pre-suit process genuinely useful.

Here’s why:

  • It can resolve disputes faster and at lower cost than litigation.
  • It compels communication between parties who may not have spoken clearly since the problem emerged.
  • It forces the contractor to go on record with their position — denying a defect that later turns out to be severe looks bad in front of a jury.
  • It gives attorneys a chance to learn more about who is actually responsible. Subcontractors who respond thoughtfully to a Right to Cure notice sometimes demonstrate they were not at fault, which helps narrow the defendants in subsequent litigation.
  • The notice tolls the statute of limitations, protecting your claim while the process runs its course.

The Right to Cure Act is a procedural hurdle, but it is also a strategic tool. Used correctly, it can lead to faster resolution and stronger litigation positioning when settlement isn’t possible.

Statutes of Limitations: Know Your Deadlines

The Right to Cure Act operates within a broader framework of time limits that govern construction defect claims in South Carolina:

  • 8-year statute of repose for property damage claims based on basic negligence (S.C. Code § 15-3-640)
  • 10-year statute of repose for claims against the architect or engineer who designed the structure
  • 3-year discovery rule, which may apply when a defect was recently discovered or concealed

The 90-day Right to Cure notice period tolls (pauses) these deadlines, so sending notice does not put you behind the clock. But waiting too long to send the notice in the first place can result in a permanently time-barred claim.

If you’re unsure whether your claim is still within the statute of limitations, consult an attorney immediately. Do not assume the clock has run out without getting a professional analysis.

Does the Act Apply to Commercial Properties?

The residential Right to Cure Act (S.C. Code §40-59-810) applies specifically to dwellings — single-family homes and certain multi-family residential structures. Commercial properties are governed by a separate statute, the South Carolina Notice and Opportunity to Cure Nonresidential Construction Defects Act (S.C. Code §40-11-500), which was enacted in 2006 and follows similar but distinct procedures, including a 120-day tolling period rather than 90 days.

If your construction defect claim involves a commercial building, office space, warehouse, hotel, retail property, or similar structure, the procedures differ from those described in this article. An attorney experienced in South Carolina construction law can guide you through the applicable process for your specific situation.

Common Questions from Charleston Homeowners

What if the contractor is out of business?

This is a gray area in South Carolina law. Some attorneys argue that notice to a defunct company is still technically required; others contend the Act should not bar claims when compliance is impossible due to the contractor’s absence. This issue has not been definitively resolved by South Carolina appellate courts. An attorney can help you evaluate your options.

What if the contractor already knows about the defect and has refused to fix it?

Again, this is an open question under South Carolina law. There is an argument that prior notice and refusal should satisfy the spirit of the Act. But until a court rules clearly on the issue, it is safest to send formal written notice that complies with the Act’s requirements regardless of prior communications.

Can I accept the contractor’s repair offer while still preserving my legal rights?

Yes, carefully. Any agreement to allow repairs should be documented in writing. Make clear what the repair scope will be, who will oversee the work, who bears the cost, and that acceptance of repairs does not constitute a release of any remaining claims. Your attorney should draft or review any such agreement before you sign.

What if I’m in a class action or HOA dispute involving multiple homeowners?

The South Carolina Supreme Court held in Grazia v. South Carolina State Plastering, LLC that each member of a class must individually comply with the Right to Cure Act’s notice requirements. The Act cannot be satisfied by class-wide notice alone. Each affected homeowner must send their own notice before the class action can proceed.

Bottom Line for Charleston Homeowners

South Carolina’s Right to Cure Act is real, it is enforced, and courts have dismissed cases where homeowners skipped it or inadvertently destroyed their ability to comply with it. The good news is that navigating it correctly is entirely achievable with proper legal guidance.

If you’ve discovered a construction defect in your Charleston-area home, the smartest first step is to document the defect thoroughly and contact an experienced construction defect attorney before taking any remediation steps. The pre-suit process can be a legitimate path to resolution — and if it isn’t, it builds the foundation for the strongest possible lawsuit.

Charleston Construction Claims is not a law firm and does not provide legal advice. This article is for educational purposes only and does not constitute legal advice or create an attorney-client relationship. Laws change; consult a licensed South Carolina attorney for advice specific to your situation.