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Construction Defect Claims Overview

Building your own home is a spectacular 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.

What Is a Construction Defect?

The term "construction defect" refers to any sort of problem with your home, from minor cosmetic issues, like peeling paint, to more major defects, like electrical problems, a leaking roof, toxic mold, or foundation cracks. Defects can be either patent or latent. Patent defects can be discovered by a reasonable inspection. Latent defects can't be discovered through an inspection, for example, a foundation problem that 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 team
  • Poor workmanship
  • Manufacturing defects in building materials (for example, leaky defective windows)
  • Soil problems that result in a lack of solid foundation

If you believe that there may be a construction defect in your home, 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, such as the cost of repairing the defect and the loss in the value of the home.

Breach of Contract or Warranty

You may want to consider first carefully reviewing your contract for the construction of the home. It may be possible for you to sue the builder for breach of contract 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.

Also, review any 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 one year. 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 lawsuit.

Negligence and Strict Liability

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, meaning that the builder is strictly liable for defects regardless of whether there was negligence involved. Some states place limitations on who can be sued under this theory. For example, in California only 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 essence. For this reason, it's important to determine your state's statute of limitations for construction defect claims. Frequently, the statue begins running when a homeowner discovered, or reasonably should have discovered, the defect.

It's also important to know whether your state has a statute of repose that bars homeowners from bringing a case after a certain length of time – running from the date of completion of the home or your date of possession of the home. For example, Florida has a ten year statute of repose to sue for latent defects.

Get Legal Help with Construction Defects

Construction defect claims have a lot of moving parts. If you have discovered a defect in your home and are considering legal action, a great first step is to speak with a professional. Find a local construction law attorney to learn more about your options and make an informed decision.

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