Construction Defects

By Ramona Leigh Taylor

Construction defect claims are more than negligent design or construction claim.Almost any condition, which reduces the value of a building, can be legally recognized as a construction defect.

Constructive defects are often the issue in insurance claims and suits. These problems are not new. Even in the time of Hammurabi, 4000 years ago, strict obligations and penalties were placed on builders and their families for construction defects and related damage.

Construction defect claims are more than negligent design or construction claim. Almost any condition, which reduces the value of a building, can be legally recognized as a construction defect. The standing definition includes failure of a building to conform to building codes, to perform its intended function, to conform to its plans, specifications, drawings or subcontracts, to conform to subcontractor specifications or component manufacturers recommendations, and/or meet reasonable consumer expectations for function and longevity. Water intrusion and mold or fungus propagation are common defects. Damage from improperly installed heating systems and inadequate protection from shrink and sulphate-filled soil are also construction defects.

In cases of potential defect claims, non-litigious remedies are often desirable; however, this may not always be possible. Homeowners may bring lawsuits to spur builders, designers and contractors to repair building problems. However, if litigation ensues, insurance companies are often involved.

Construction claims and suits are often complex, expensive, and hotly contested despite the fact that many may have straightforward issues. Consumers may attempt to claim emotional damages and financial damages under varying theories. Also, architecture, construction and engineering experts may be needed to support or establish key elements of defenses and claims.

While building owners may be able to seek financial support from building associations, personal resources, and special private lenders, this may not be true for construction professionals. Builders, designers, contractors and even subcontractors may be subject to reimburse an opponentís and/or associateís litigation costs in the event of an unfavorable result depending the theories of liability and the appropriation of fault.

There is no way to be completely insulated from construction defect claims or suits, because of the various elements that may prompt liability. Construction professionals, at the least, should attempt to deal, document and defend. Construction professionals should maintain good working relationships between themselves and their clients. Most issues can be resolved through mutual understanding and informal agreements. Professionals should keep adequate records of their projects, including detailed information on materials used. This information can help determine whether defective or improper materials were used in a job. Finally, professionals should maintain adequate coverage. Insurance coverage will help protect them from the overwhelming costs of claims and suits.