The sales agreement could easily identify Greenfiled Hardy as the “third party” designated to accept – and to evaluate- the claim. The builder could, by express language, simply agree to submit the matter for “neutral” evaluation. With the notification provisions, the sales contract could add a provision to the effect:

“Buyer agrees to provide notice of claims and to submit all claims related to the supply, manufacture, and construction of the home, to Greenfield Hardy for Early Neutral Evaluation. Builder and Buyer agree to cooperate fully in the claims’ filing process and agree that the evaluation to be provided is “neutral”. In the event that the “neutral’ evaluation is unacceptable – for any reason- the parties agree to pursue mediation (or to submit the matter to binding arbitration). Failure, by any party, to mediate prior to filing suit will forfeit that party’s entitlement to attorneys fees, if any, under the terms of this contract.”

Similiar language could be used effectively in the subcontact agreements and in broader based construction claims – not just those brought under SB 800. In particular, subcontractors should insist on language that provides for them a truly “neutral” evaluation under warranty, for backcharges, or under SB 800 and Calderon. The Builder will want to ensure the participation of the subs in the ENE process described in his or her contract with the Buyer.