Colorado’s construction defect statutes establish specific requirements for notices of claim and statutory tolling. It is time for courts and arbitrators to enforce them.
There is a frustrating tendency in some Colorado construction defect litigation to treat virtually any written complaint about construction work as a statutory notice of claim under the Construction Defect Action Reform Act (“CDARA”). An e-mail complaining about cracked concrete. A request for warranty service. A message asking a builder to come inspect a leaking window. Years later, when the homeowner faces a statute-of-limitations defense, these routine communications are suddenly characterized as statutory notices of claim, with the convenient consequence that an otherwise untimely lawsuit becomes timely.
Enough is enough.
A warranty complaint is not a statutory notice of claim simply because a homeowner complains about construction. Courts and arbitrators should stop treating the two as interchangeable.
The Legislature Actually Wrote a Statute
Colorado’s General Assembly did not leave the CDARA notice-of-claim process to guesswork.
C.R.S. § 13-20-803.5(1)(a) expressly provides that a claimant shall send or deliver a written notice of claim to a construction professional by certified mail, return receipt requested, or by personal service.
These are not casual suggestions. They are the methods of service expressly identified by the legislature.
There is an important statutory qualification. Section 13-20-803.5(11) also provides that actual receipt, by any means, of a written notice prepared pursuant to the statute constitutes sufficient delivery or service. Accordingly, a genuine statutory notice does not necessarily become ineffective simply because it was delivered by e-mail rather than certified mail or personal service.
But that exception does not transform every e-mail, warranty request, or complaint about construction into a statutory notice of claim.
Actual receipt of a qualifying statutory notice is one thing. Actual receipt of an ordinary warranty complaint is quite another.
The distinction matters because C.R.S. § 13-20-805(1) conditions notice-based tolling of the statute of limitations or repose on a notice of claim being sent in accordance with § 13-20-803.5.
The legislature did not say that the statute of limitations is tolled whenever a homeowner complains about construction. It did not say that a builder’s knowledge of a problem is sufficient. It did not say that a contractor’s willingness to investigate a warranty complaint automatically suspends the limitations period.
It required compliance with a statutory notice-of-claim process.
Courts should enforce that requirement.
The Court of Appeals Got It Right in Schulte
In Schulte v. All Seasons Construction, Inc., 2023 Colo. App. LEXIS 2344 (Dec. 21, 2023), an unpublished decision, the Colorado Court of Appeals affirmed summary judgment in favor of a concrete subcontractor based on the statute of limitations.
The homeowners had hired All Seasons Construction to install concrete floors in their home. By March 2018, they were complaining about excessive cracking. In April 2018, they sent an e-mail reporting more than 150 linear feet of second-floor concrete cracking, along with spalling, and asking whether the recipients wanted to inspect the conditions.
When their subsequent construction defect lawsuit encountered a statute-of-limitations defense, the homeowners argued, among other things, that this earlier e-mail constituted a statutory notice of claim sufficient to toll the limitations period.
The Court of Appeals rejected that argument.
In paragraph 30, the court explained that the e-mail did not notify All Seasons of a claimed construction defect for which it was allegedly responsible or assert resulting damages. Consequently, the e-mail did not qualify as a statutory notice of claim under CDARA.
Think about that.
The homeowner identified a specific physical condition. The homeowner described its location. The homeowner invited the contractor to inspect.
And the Court of Appeals still recognized that reporting a construction problem is not the same thing as asserting a statutory construction defect claim.
The homeowners also claimed to have sent formal CDARA notices by certified mail. To support that assertion, they submitted photographs of notices, envelopes, mailing labels, and purported postal records.
But the materials were not properly authenticated. Nor did the homeowners submit an affidavit from someone with personal knowledge establishing that the notices had been sent by certified mail, return receipt requested.
The Court of Appeals rejected that tolling argument as well.
Although Schulte is unpublished and not binding precedent, its reasoning illustrates an important point: a party claiming the benefit of statutory tolling must establish compliance with the statute.
It is not enough to assert that notice was provided. It is not enough to produce an assortment of unauthenticated documents. And it is not enough to point to an earlier e-mail mentioning construction problems and insist that it should count.
An E-mail Can Start the Clock Without Stopping It
Perhaps the most troubling aspect of treating informal warranty complaints as statutory notices of claim is the inconsistency it creates between accrual and tolling.
Under C.R.S. § 13-80-104(1)(b)(I), a construction defect claim generally accrues when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the physical manifestation of a defect.
An e-mail complaining about cracked concrete, water intrusion, or another observable condition may establish that the homeowner knew of the physical manifestation of an alleged defect.
That knowledge may start the statute-of-limitations clock.
But when the limitations period expires, the homeowner may attempt to characterize the same e-mail as a statutory notice of claim that stopped the clock.
Not so fast.
The fact that an e-mail demonstrates knowledge of a physical condition does not establish that the e-mail satisfies CDARA’s separate requirements for a notice of claim.
Accrual and tolling are different statutory concepts. They serve different purposes. They have different requirements.
The discovery of a physical manifestation can trigger accrual without any formal notice to a construction professional. Statutory notice-based tolling, by contrast, requires compliance with CDARA’s notice provisions.
Courts should not conflate the two simply because doing so would allow an otherwise untimely claim to proceed.
Warranty Service Is Not the CDARA Notice-of-Claim Process
Builders routinely receive warranty requests. That is part of the business of residential construction.
Homeowners report cracked drywall, sticking doors, leaking windows, uneven concrete, and countless other conditions. Builders investigate. They send warranty representatives to inspect. Sometimes they perform repairs. Sometimes they dispute responsibility.
These interactions are commonplace.
They are not necessarily adversarial. They do not necessarily involve claims for damages. And they do not automatically constitute invocation of CDARA’s statutory notice-of-claim process.
Yet, in some construction defect litigation, ordinary warranty correspondence is later repackaged as statutory notice for the purpose of defeating a limitations defense.
This creates a perverse incentive.
A builder that promptly responds to a homeowner’s complaint may later discover that its participation in the warranty process is being cited as evidence that the homeowner initiated CDARA’s statutory notice process and thereby tolled the statute of limitations.
A builder should not have to choose between providing responsive warranty service and preserving its statutory defenses.
To be clear, the title of a communication is not necessarily dispositive. A written communication that actually satisfies the statutory definition of a notice of claim, and the applicable requirements for delivery or receipt, may qualify regardless of whether it is labeled a formal CDARA notice.
But the opposite is equally true.
A communication that does not satisfy the statutory requirements does not become a notice of claim merely because it was written, received, and concerned construction problems.
Nor should separate statutory provisions governing tolling during qualifying mitigation efforts be confused with notice-based tolling. Colorado’s 2025 amendments created additional rules concerning mitigation and tolling for claims subject to those amendments. Those provisions must be applied according to their own terms. They do not eliminate the requirements for a statutory notice of claim.
Courts and Arbitrators Need to Stop Skipping the Analysis
When a plaintiff argues that an otherwise untimely construction defect claim was saved by an earlier e-mail or warranty communication, the inquiry should not end with a finding that the builder knew about the problem.
That is not the statutory test.
The court or arbitrator should identify the particular communication alleged to constitute the statutory notice of claim.
It should examine whether that communication actually asserted a construction defect claim and provided the information required by C.R.S. § 13-20-802.5(5), including a description of the alleged defect, the nature and location of the allegedly defective construction, and the damages claimed.
It should determine whether the notice was sent or delivered in accordance with § 13-20-803.5, including the statutory provisions governing actual receipt.
It should examine whether the party asserting tolling has produced competent evidence establishing compliance.
And it should determine the actual period during which the statute was tolled.
These are not unreasonable hurdles. They are the requirements of the statutory scheme.
A court should not rummage through years of warranty correspondence, identify an e-mail mentioning a construction problem, declare it a statutory notice of claim, and conclude that the statute of limitations was tolled.
That is not statutory interpretation. It is effectively rewriting the statute.
Statutes of Limitations Are Supposed to Mean Something
Statutes of limitations reflect legislative judgments about when claims must be brought. They protect against stale litigation, encourage timely investigation, and provide finality.
CDARA establishes specific circumstances in which those limitations periods may be tolled.
The published decision in Shaw Construction, LLC v. United Builder Services, Inc., 2012 COA 24, addresses the importance of statutory notice to the operation of CDARA’s tolling provisions, although portions of that decision were subsequently overruled on other grounds by Goodman v. Heritage Builders, Inc., 2017 CO 13.
And Schulte illustrates why courts must distinguish between identifying a construction problem and delivering a qualifying statutory notice of claim.
The purpose of CDARA’s notice process is not simply to inform a contractor that someone is unhappy with its work. The process provides a structured opportunity to investigate alleged defects, evaluate responsibility, consider repairs or settlement, and potentially resolve disputes before litigation.
The legislature established specific requirements to initiate that process.
Courts should not disregard those requirements simply because enforcing them would result in dismissal of a claim.
There is nothing inherently unjust about enforcing a statute of limitations. And there is nothing unfair about requiring a party seeking statutory tolling to demonstrate that the statutory conditions for tolling were satisfied.
The legislature established those conditions for a reason.
Enough Is Enough
Colorado’s construction defect statutes are complicated enough without expanding the meaning of a notice of claim to encompass virtually every e-mail reporting a construction problem.
The legislature specified a formal notice process. It defined what a notice of claim must communicate. It identified methods of service and circumstances in which actual receipt is sufficient. And it expressly conditioned notice-based tolling on compliance with that process.
Those requirements should mean something.
An e-mail complaining about a warranty problem is not automatically a CDARA notice of claim. Knowledge of a problem is not the same as receipt of a statutory claim. A request for an inspection is not necessarily an invocation of CDARA’s notice process. And an otherwise untimely lawsuit should not be rescued by retroactively transforming routine warranty correspondence into something it was never intended to be.
The statute says what it says.
It is time to enforce it.