Construction Defect FAQs

What is a construction defect?

A construction defect is a condition in your home that reduces the value of the home. Some defects are obvious such as water seepage, but many (latent defects) are less obvious and do not become apparent until years after the home was built.

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

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

The most common types of defects involved in litigation include:

• Mold
• Water issues
• Electrical and heating systems
• Landscaping and soil
• Faulty drainage
• Foundation, floor, wall, and roof cracks
• Dry rot
• Structural failure
• Plumbing

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, but in general, the cost of repairs and the decline in the value of your home may be recovered. Additionally, other recoverable damages might include the loss of the use of the property during the repair, the cost of temporary housing, court costs, and in some instances the attorney's fees if provided for in the contract or by your state's laws. Of course, 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, typically 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 generally, the responsibility will lay with the general contractors, developers, and the builders of residential structures 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 and give them an opportunity to remedy the damage. Then they can file a lawsuit if the defect is not repaired. The statute of limitations (the time limit for filing a suit) also depends on whether the defect is 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 statues, such as statutes of repose, start from the date of completion of the home. It is important to take action immediately if your home has a construction defect.

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

Usually, 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, which 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?

Generally, homeowners may sell their homes during such lawsuits as long as marketable title is not affected by a lis pendens, but most states have a disclosure law that requires a homeowner to disclose to a potential buyer that the home is involved in litigation. You should consult with a real estate attorney to understand your rights and measure risks, accordingly.