Construction defects can occur when a construction is not in accordance with the building code, statutes, or contract terms. Different parties can be held liable for the construction defect, depending on the nature of the defect and the terms of the contract: the architect, the engineer, the contractor, or the product manufacturer. A construction defect lawyer will be able to identify the parties liable for a construction defect by evaluating your case and reviewing the terms of your contract.
Types of defects
Defects can be characterized based on visibility: patent or latent. Patent defects are defects that are obvious and visible to the eye. Latent defects are hidden defects that cannot be immediately seen. For example, the code involving the construction of stairs requires a minimum width or height for the tread and riser. If these minimum measurements are not observed, it is a patent defect because it is obvious, visible, and easily ascertainable to the eye. Roof defects, on the other hand, are usually latent. You only realize there is a defect with your roof when it rains and you notice leaking in your house.
Defects can also be characterized based on types, and this usually spells out who is liable for the defect:
Defects in design
A design defect is usually the liability of the architect or engineer. These architects and engineers are required to draw up plans based on building codes with the standard of care exercised by similar professionals in the community. For example, a flawed roof design can lead to water penetration and mold, leading to extensive water damage in the interior of the house. If it is proven by expert testimony that the defect was related to a design issue for which the design professional was solely responsible, such design professional is solely liable for damages, and the contractor will not be held liable for the design defect.
Defects in construction
A defect in construction usually ranges from gross deviations from the approved architectural plans and specifications to failure to complete the construction. The contractor, however, is not always the person responsible for construction defects. Expert testimony is required to prove that the cause of the problem was due to construction and not design or product defects. Even if the cause of the defect is due to a design flaw, such as lack of additional foundation work due to the soil composition, the contractor can be held substantially liable if it failed to point this out to the architect.
Defective and improper materials is the responsibility of the supplier who provided the defective materials, who can then implead the product manufacturer for products liability. Here, disputes may arise as to who selected the defective material, who supplied the material, and who installed it. For contractors, it is prudent to insert a provision in the contract absolving it from liability for defects arising from owner-supplied and owner-selected materials.
Even if there is an unflawed design constructed with due diligence using proper materials, if such materials were improperly installed, a construct defect can result. For example, there could be design plans which were constructed in accordance with the plans using the proper pipes, but the installation of the plumbing pipes were done improperly by the plumber, there is a construction defect. Usually, the plumber who is a subcontractor is liable for this construction defect. However, if part of the contract of the architect or engineer is to supervise the work of the subcontractor-plumber, the architect or engineer will likewise be liable for the construction defect.
Statute of limitations
The statute of limitations is the period provided by law for an aggrieved party to file their claim before the courts. As a general rule, you have three years to file a claim against design professionals for negligence and malpractice. You have three to four years to file a claim for defective construction products, depending on the product. Breach of contract claims are filed within six years.
When is this period counted from? It is usually counted from the time the construction was substantially completed.
When the defect is latent or hidden, the statute of limitations may be counted from the time of discovery based on theories of negligence or contract law.
The damages you can request for depend on the type of construction defect.
For design defects, the property owner is entitled to be restored to the position as if the construction was performed without design defects. Thus, the design professional is liable for damages caused by the defect, the costs required to correct it, and the market value that has been lost due to the defect. If the property cannot be reconstructed with a reasonable cost, the design professional will be liable for the total cost of reconstruction.
For construction defects, the damages usually encompass any actual damage caused by the construction defect plus the cost of correcting it.
For the use of defective materials, the damages include the cost of repairing the damage plus damages arising from breach of warranty.
For the defective installation of materials, the damages include any damage arising from the defective installation plus the cost of correcting it.
Proving construction defects
Your construction defect lawyer will be able to help you gather the evidence you need to prove the construction defect. This is typically proven by getting an expert, such as an engineer, to produce a qualified engineering inspection and report. This engineer will document the cause of the construction defect and any corrective measures needed to repair the defect. This engineering report will be submitted to the court as evidence of the cause of the construction defect and the basis for your damages. They may also be required to testify as to the contents of their report.
Your lawyer will also ask you for all contracts or statements of work, deviations, and correspondence (email, fax, letters, texts) with the contractor, designer, architect, engineer, plumber, electrician or other building professional.
Construction defect issues are complex. A construction defect lawyer will be able to guide you through the process of gathering your evidence to strengthen your claim. Should you need assistance, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.