Construction Defect FAQ

A construction defect is a condition in your home that reduces the value of the property. Whether you’re a new home buyer or a longtime property owner, this page will provide answers and disclaimers to frequently asked questions (FAQ) that may be helpful to your situation.

Some defects are obvious such as water intrusion, but many are less obvious (latent defects) and do not become apparent until years after a home was built. For instance, it may be obvious to the naked eye that the stucco on your condominium is chipping off. Underneath all the cement, however, there may be issues with the home’s foundation that aren’t discovered until the home starts sinking.

What causes a construction defect?

A construction defect can arise from a variety of factors, such as poor workmanship or the use of inferior materials. Many arise from a combination of factors, including:

• Improper soil analysis and preparation
• Site selection and planning
• Civil and structural engineering
• Negligent construction
• Defective building materials

If you discover a defect soon enough, you may be able to file a warranty claim with your contractor. Hopefully, they will be willing to correct the problem before you are forced to take more drastic legal action.

What are some of the most common types of construction defects?

The most common types of defects involved in litigation include:

• Water issues (often leading to mold)
• Electrical and heating systems
• Landscaping and soil
• Faulty drainage
• Foundation, floor, wall, and roof cracks
• Dry rot
• Structural failure
• Plumbing

While these are the most common, there are many other types as well.

How is a construction defect proved in court?

It depends on the defect. Some defects are obvious and are called patent. Other defects are hidden or do not become apparent until years after the home was built. These defects are called latent.

A successful construction defect litigation claim relies on the testimony of experts who specialize in specific areas of construction. The experts investigate the defect, evaluate the cause, and make recommendations for how to remedy the defects.

What kind of damages can be recovered?

It depends on the facts and circumstances of your case. In general, the cost of repairs and the decline in the value of your home may be recoverable. In addition, other recoverable damages might include:

• Loss of the use of the property during the repair
• Cost of temporary housing
• Court costs
• Attorney's fees, if provided for in the contract or by your state's laws

Any personal injuries resulting from the defect may be recovered. In some instances, punitive damages may be assessed against the defendant if the court finds their behavior to be reckless and intentional.

Who pays for the damages?

Builders, developers, contractors, and construction companies may be sued as defendants in these types of cases. Assuming you prevail against a defendant, the defendant's insurance company that was in effect when the damage was first noticed will be responsible for paying the damages.

Who else is responsible for construction defects?

There may be several responsible parties, but the responsibility will belong to the general contractors, developers, and builders of residential structures. This is true even if the work was performed by subcontractors or if the defective materials used in construction were manufactured by others.

Architects, designers, and other involved parties may also be defendants in litigation.

Are there any time limits on filing a lawsuit for repairs?

Yes, but it varies by state. Many states have legislation that requires the homeowner or homeowners association to:

• Notify the developer or contractor of the defect
• Give them an opportunity to remedy the damage

You can file a lawsuit if the defect is not repaired. The time limit for filing a lawsuit, known as the statute of limitations, also depends on whether the defect is either latent (hidden and not obvious to a reasonable person) or patent (obvious).

The shortest time limit is three years from the date the defect is discovered or should have discovered the problem, but this can vary by state. Other laws, such as statutes of repose, start from the date of completion of the home.

As you can see, it's important to take action sooner rather than later if your home has a construction defect.

Should I make repairs while the lawsuit is pending? Can I recover those costs in the lawsuit?

The homeowner or homeowner's association is required to protect property from sustaining additional damage. This is known as the legal duty to mitigate damages. Such costs are recoverable in the lawsuit if the plaintiff prevails.

Failure to perform routine maintenance and reasonable repairs can cause or contribute to additional damages. These could be offset from the owner's claim and lead to the defense of "failure to mitigate damages."

Can I sell my home during a pending lawsuit?

In general, homeowners may sell their homes during such lawsuits as long as the marketable title is not affected by a lis pendens. A lis pendens is a pending lawsuit for which a plaintiff encumbers a property. This will prevent its sale until the matter is resolved.

Most states have a disclosure law that requires a homeowner to disclose to a potential buyer that the home is involved in litigation.

How a Lawyer Can Help With a Construction Defect Claim

Construction defect cases can involve complicated laws and building codes. These are legal issues that are best resolved through a client relationship with an attorney. You should consult with a real estate attorney or construction defect attorney to get legal advice, accordingly.