Information Center Housing & Construction Defects
Frequently Asked Questions about Construction Defects
Q: What is a construction defect?
A: A construction defect is a defect in the design, workmanship, material or condition of the land for the building site that leads to a reduction in the value and/or use of the home. Construction defects can be obvious from visible inspection, but many are hidden, or latent, defects that do not make themselves known until after a homebuyer has moved into the house.
Q: What are some types of construction defects?
A: Construction defects include leaky basements, garages and roofs; improperly installed windows, chimneys, heating and air conditioning units and electrical systems; cracked foundations, walls and infrastructure; mold, dry rot and more. Construction defect claims also can result from defects in the land chosen to build the house on, including problems with soil instability, water supply and grading.
Q: Who may be responsible for a construction defect in my home?
A: A number of parties could be responsible depending on the type and cause of the defect. Potential defendants may include: builders, sellers, architects, engineers, designers, product manufacturers, material suppliers, contractors, subcontractors and even in some instances, lenders.
Q: What types of claims may I make if I discover a construction defect in my house?
A: The types of claims available to you will depend on the laws of your state and the facts of your case. You may have a claim for breach of warranty, either implied or express. You may have a negligent construction case, or a claim for fraudulent concealment of a known dangerous condition. An attorney experienced in construction defect cases can review your case and determine which claims may be available to you.
Q: What is an implied warranty?
A: When a homeowner purchases a newly constructed home, he or she receives the protection of the implied warranty of habitability and fitness. States have differing names for this implied warranty, but what it basically means is that the homebuilder is certifying (or warranting) to the homebuyer that the home is suitable for living in and fit for use as a home. The warranty generally only applies to new homes, but there are some exceptions to this rule. If the homebuyer discovers a defect in the home or its property, he or she may have a cause of action against the homebuilder for breach of this implied warranty.
Q: What is a latent defect?
A: A latent defect is also known as a hidden defect. It is a type of defect that cannot be readily observed. Some examples of latent defects include improperly installed chimneys, heating units and roofs; cracked walls, infrastructure and foundations; leaky basements and garages.
Q: If I discover a construction defect in my house, should I repair it myself?
A: No. While plaintiffs do have a duty to mitigate further damage, if you are interested in pursuing a claim against the homeowner to repair or pay for the damage, you should first speak with an attorney experienced in construction defect claims. Most states require plaintiffs to provide homebuilders with an opportunity to fix or repair the defect before they can file a lawsuit to recover damages. An attorney in your area can explain your state's legal requirements.
Q: What types of defenses may a defendant make against a construction defect claim?
A: Depending on the facts of the case and the laws of the jurisdiction where the claim is made, the defendant may claim that the contract with the buyer limits the type of recovery available, that the buyer waived his or her rights to recovery, that the actions of a third-party and not the defendant caused the defect, that the buyer failed to mitigate damages, among others.
Q: What are the available remedies for a successful construction defect claim?
A: Remedies may include the cost of repairs and the loss in market value of the house. In some cases, rescission may be available. Rescission means that the contract is "unmade" and the parties are returned to the position they were in before there was a contract. This may include the homebuilder returning money paid by the buyer for the house.
Q: Why should I hire an attorney for a construction defect claim?
A: Construction defect claims can be very complex and include many different parties. An attorney knowledgeable in this area of the law can determine who should be named in the suit, what remedies are available to you and the best way to pursue your claim. State law in this area varies, so it is important to work with someone who can explain these laws to you. You also have a limited amount of time to file a claim for a construction defect. The exact amount of time, known as a statute of limitations, differs depending on the type of claim you have. An attorney can explain these nuances to you.
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