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Construction Defect Claims Overview

Building your own home is a spectacular real estate achievement. But learning that your dream home has a construction defect – which lowers its value – is devastating. So, what do you do when there’s a problem with your new home? Read on to learn more about construction defect claims affecting real property.

What Is a Construction Defect?

The term "construction defect" refers to any sort of problem with your home. That includes both:

  • Minor cosmetic issues, like peeling paint
  • Major defects, like electrical problems, a leaking roof, toxic mold, or foundation cracks

Defects can be either latent or patent. Patent defects are discoverable by reasonable inspection. Latent defects can't be discovered by a reasonable inspection. For example, a latent defect can include a foundation problem that has been undiscovered for some time. It doesn't become apparent for years down the road until settling causes the foundation to crack.

There are many different types of construction defects, including:

  • Errors or omissions by the architect or design professional
  • Poor workmanship during a new construction
  • Manufacturing defects in building materials (for example, leaky defective windows)
  • Soil problems resulting in a lack of solid foundation

If you believe there may be a construction defect in your residential construction, act quickly. It's a good idea to hire an independent home inspector to assess the extent of the damage at the first sign of a defect.

Can I Sue for Construction Defects?

Depending on your circumstances, you may also have legal options available to you. Ideally, the party legally responsible for the defect should be held accountable for remedying the situation. It may be possible for you to bring a lawsuit based on different legal theories and seek damages. You may file suit for damages, such as the cost of repairing the defect and a loss in the value of the home.

Breach of Contract or Warranty

You may want to consider carefully reviewing your contract for the construction of the home first. It may be possible for you to sue the builder under a breach of contract claim (cause of action). This applies if the home was not built to the specifications set out in your contract. Note that you must have been one of the parties to the contract in order to have standing to sue for the breach of that contract.

Keep in mind that many states may recognize implied warranties in construction agreements. For example, California law recognizes an implied promise of good faith in contracts. Also, review any express warranties given to you by the builder. Your builder may have guaranteed the quality of construction of your home for a specific period of time – for example, six months or six years. If the construction defect arose during this time period, you may be able to sue for breach of warranty.

Your construction contract may also contain certain provisions regarding disputes, including an arbitration clause or alternate dispute resolution requirement. These sorts of provisions require that you attempt to resolve the matter out of court before filing a lawsuit. It's important to know if your contract contains these sorts of provisions before filing a construction defect case.

Negligence Claims and Strict Liability

Under tort law, you may also be able to sue your builder for negligence. When constructing your home, the builder owed you a duty of care to construct the home carefully and produce a home free of defects. If the builder breached that duty and caused you damages, you may be able to sue for negligence.

Depending on the laws of your state, you may be able to sue based on a strict liability theory. This means that the builder is strictly liable for defects regardless of whether there was negligence. Some states place limitations on who can be sued under this theory. For example, under California law, mass developers can be sued under strict liability. A local attorney can help you understand if a claim based on a strict liability theory is available to you.

Time Limitations on Construction Defect Claims

When addressing construction defects, time will likely be of the essence. So, it's important to determine your state's statute of limitations for construction defect claims. States have different statutes of limitations that turn on a defect’s date of discovery. Frequently, the statute begins running when a homeowner discovered or reasonably should have discovered the defect. For example, Colorado has a two-year statute of limitations period for construction defects.

It's also important to know whether your state has a statute of repose that bars homeowners from construction defect litigation after a certain length of time. Statutes of repose run from the date of completion of the home or your date of possession of the home. For example, Florida has a 10-year statute of repose to sue for latent defects.

Get Legal Help With Construction Defects

Construction defect claims have several moving parts. If you’ve discovered a defect in your home, you may be able to recover the cost of repairs for property damage. If you’re considering legal action, speaking with a professional is a great first step. Get legal advice from a local construction defect attorney to learn more about your options and make an informed decision.

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