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Construction Defect FAQs

Q: What is a construction defect?
A:
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 are less obvious and do not become apparent until years after the home was built.

Q: What causes a construction defect?
A:
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

Q: What are some of the most common types of construction defects?
A:
The most common types of defects involved in litigation include:

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

Q: How is a construction defect proved in court?
A:
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.

Q: What kind of damages can be recovered?
A:
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 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.

Q: Who pays for the damages?
A:
Typically the defendant's insurance company that was in effect when the damage was first noticed will be responsible for paying the damages.

Q: Are there any time limits on filing a lawsuit for repairs?
A:
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. Other statues start from the date of completion of the home. It is important to take action immediately if your home has a construction defect.

Q: Who is responsible for construction defects?
A:
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.

Q: Should I make repairs while the lawsuit is pending and can I recover those costs in the lawsuit?
A:
Usually the homeowner or homeowner's association is required to protect property from sustaining additional damage. Such costs are recoverable in the lawsuit. Failure to perform routine maintenance and reasonable repairs can cause or contribute to additional damages, which could be offset from the owners claim and lead to the defense of "failure to mitigate damages".

Q: Can I sell my home during a pending lawsuit?
A:
Generally homeowners are allowed to sell their home during the lawsuit but most states have a disclosure law that requires a homeowner to disclose to a potential buyer that the home is involved in litigation.

Next Steps
Contact a qualified real estate attorney to help protect you
from the costs and frustration of construction defects
(e.g., Chicago, IL or 60611)

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