Information Center Housing & Construction Defects
Defenses to Construction Defect Claims
There are several defenses defendants may assert against allegations he or she caused a construction defect in your home. It is important to be aware of the defenses and prepare your case accordingly. Below is a list of the some of the defenses that may be raised. The availability of these defenses will depend on the facts of your case and the laws of your jurisdiction. If you have questions about construction defect claims, contact an experienced attorney at Herrig & Vogt LLP in Sacramento, California today.
Waiver
In some situations, a plaintiff may have waived his or her rights to pursue legal action against a party. Waiver can occur in many ways. For example, the plaintiff may have signed a contract that contained a clause waiving certain legal rights. Or the plaintiff may have known of the defective work performed by the builder and accepted the home in that condition despite it. A plaintiff also can waive the right to contest a construction defect if he or she does not bring the claim within a reasonable amount of time after discovering the defect.
Statute of Limitations
Each state has a statute that determines the amount of time a plaintiff has to bring a claim for certain actions, including construction defects. The amount of time allowed to bring a claim will vary depending on the type of claim. For example, the statute of limitations may be longer for a claim based on breach of express warranty than for a claim based on fraudulent concealment. In some states, the statute of limitations begins to run at the time the defect occurred. In other states, the statute of limitations does not begin to run until the plaintiff discovers the defect or should have discovered the defect through reasonable diligence.
Limits on Liability in the Contract
The contract between the homebuyer and homebuilder, seller or other party may have included certain terms to limit liability. For example, the contract may have included an exculpatory or indemnity clause, a no damage for delay clause or a limitation of consequential damages clause. While these clauses may not prevent a plaintiff from seeking recovery, they may act to limit the amount of recovery a plaintiff is entitled.
Intervening and Superseding Causes
The defendant in a construction defect case may claim that the actions of a third-party caused the construction defect. In order for a defendant to succeed, the third-party's actions must be the proximate cause of the plaintiff's injury. For example, the defendant may be a builder who contracted with a general contractor and subcontractors to complete the construction of the home. The construction defect may have been caused by the act of the contractors, rather than by the act of the builder.
Compliance with Plans and Specifications
The defendant may claim that the resulting defect was caused by the plans and specifications for the house, rather than the actual construction of the building. Thus, since the builder followed the specifications in the building plans, it was because the underlying plans were faulty that the defect occurred.
Failure to Mitigate Damages
If the plaintiff can take reasonable action to prevent further loss and fails to do so, the amount of damages he or she can recover may be limited. Once the plaintiff discovers the defect, he or she has a duty to mitigate, or try to prevent, further damage from occurring. The plaintiff is not required to take extraordinary steps to do this, or subject him or herself to risk or burden.
Conclusion
Construction defect cases quickly can become complex. To protect your claim for recovery from a construction defect, contact Herrig & Vogt LLP in Sacramento, California today. An experienced attorney can review the facts of your case and help you build the best possible claim against the responsible parties.
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