Building or buying a new home is often the single biggest financial decision we make in our lives. We expect everything to be perfect with the house. No mistakes. No flaws. No defects. But the reality is different. There is no such thing as a perfectly constructed or perfectly remodeled house free of defects. Indeed, construction defects are normal.
Sometimes people buy a house aware there is a construction defect. They simply decide the defect is something they can live with, bargain over, or they will fix it later. These are obvious or patent defects, such as when the builder used black paint in your bathroom instead of white. This article deals with construct defects that are not obvious or not easily discoverable. These defects are called latent defects.
Latent defects are the source of most construction defect litigation because the owner may not (or could not) discover the defect until years afterward. If, for example, a contractor installs a support beam that is too small to support the weight of a ceiling, it might take years for the drywall in your ceiling to crack and bow from the defective beam. The defect could not have been discovered during a walk-through inspection. Only the builder or its contractor should have discovered the defect. And since they did not discover the defect, it is now your problem to deal with.
What are Construction Defects?
Construction defects are generally defined as conditions with the construction or remodel of your home that reduces its value. Construct defects can be caused by improper construction methods, poor workmanship, use of improper materials, or improper design. A condition may be defective for multiple reasons. For example, if a driveway was supposed to be constructed to slope away from the house but was actually constructed so it slopes toward the house, causing periodic flooding inside the garage, the defect could be the result of poor workmanship and/or improper design. It might also be a breach of the construction contract.
Categories of Construction Defect Lawsuits
While homeowners can potentially take legal action against a contractor for any condition that diminishes the value of their property, the majority of construction defect lawsuits fall into three categories:
Defects in design, workmanship, or materials: Poor construction and cheap or improper materials are a common basis of construction defect lawsuits. A builder that takes shortcuts to save time or money could put you, your family, and your property in danger because of faulty drainage, faulty plumbing, unsafe electrical wiring, improper design of fire protection walls, use of improper materials, and negligently designed roof slope, etc.
Structural Failures: Any condition that results in structural failure or collapse can have catastrophic consequences. You could be facing issues such as water leaking through roofs, improper joists or weight-bearing walls, improper foundation construction, fallen ceilings, and similar problems, all of which can bring about considerable property loss and damage.
Earth settlement issues: Construction companies and contractors are required to pay special attention to slopes, water tables, and earth settlement conditions to ensure the structure will hold up in the surrounding environment. Underground water sources, improper soil compaction, landslides, expansive soils, and poor grading and improper drainage can result in internal damage to your house and make a home uninhabitable until repairs are completed.
Fortunately, homeowners can take legal action against construction companies, contractors, or design professionals (architects, engineers) for these defects. Homeowners can bring construction defect lawsuits based on some or all the following grounds:
- Breach of contract
- Breach of warranty (implied & express warranties)
- Strict liability (for dangerous products used in construction)
Prior to Suing: Look for Builder’s Warranty
Washington State law requires a written contract for the construction of new homes and for remodels if the work cannot be completed within one year. If your home is new, look through your contract documents. Most home builders provide owners with a builder’s warranty for their work. Builder warranties are typically for one year but may have varying deadlines to file warranty claims depending on the type of work. For example, there might be a two-year warranty on plumbing and electrical work and a 10-year warranty for structural defects. Review the contract documents to make sure you know the time limits because courts will generally honor the time limit written in the contract.
The sales documents should also explain how you must present a builder’s warranty claim. For example, the claim might need to be in writing and sent to a specific address or addressed to a specific person. An owner may also be required to file the warranty claim by certified mail, registered mail, or personal service. Again, read the sales documents first.
Prior to Suing: Contractor Notice
Prior to filing a lawsuit against a contractor, an owner must give the contractor written notice about the nature of the construction defect and an opportunity to inspect. The purpose of the notice requirement is to give the contractor an opportunity to fix the problem. If the parties cannot agree on a mutually agreeable solution, the homeowner may file suit.
Filing Suit: Statute of Limitations
A statute of limitations is a deadline imposed by law that sets the last date you can file a lawsuit. If you try to file a lawsuit after the statute of limitations deadline has passed, your lawsuit may be dismissed. It is important to keep in mind that numerous and varied statute of limitations periods exist in construction law cases. For example, if a lawsuit is based on a breach of a written contract for the installation of a roof, a six-year statute of limitations will apply. For cases involving oral contracts, there is a three-year statute of limitations. A claim based on negligent workmanship also has a three-year statute of limitations. Fraud claims and other cases involving intentional torts have a two-year statute of limitations.
But what if the owner did not discover the construction defect until after expiration of the statute of limitations period?
The Discovery Rule
Sometimes there is a delay between the time a homeowner is “injured” by a construction defect and the time the construction defect is discovered. This is especially common for people who know nothing about construction. Washington law has accounted for this possibility by enacting what is called the “discovery rule.”
The discovery rule pauses the statute of limitations until such time when the plaintiff should have discovered the construction defect through the exercise of due diligence. Stated differently, when a plaintiff-owner gets notice of some harm (injury) to their property committed by another, the owner must make reasonably diligent inquiries to determine the scope of the actual harm. The discovery rule often applies in breach of construction contract situations where latent construction defects are alleged. Importantly, if a plaintiff-owner fails to conduct due diligence, the discovery rule will not apply. As you will read, the discovery rule is not indefinite.
Washington’s Statute of Repose
Separate and apart from Washington’s statute of limitations, Washington has enacted a statute of repose in construction cases. The statute of repose limits an owner’s ability to sue a contractor to six years after substantial completion of construction services or termination of services, whichever is later. The six-year deadline in Washington’s statute of repose effectively limits the discovery rule to six years.
Here is an example of how the statute of repose works. You hire a general contractor to build your dream home. The contractor hires a plumbing subcontractor to install the plumbing system. The home is substantially completed seven years ago. You suddenly discover that the wrong type of sewage pipe was installed in your home. In this situation, there is no question you exercise due diligence, but unfortunately, you will not be able to sue the contractor because of the six-year statute of repose.
What Should I Do If I Discover a Construction Defect?
If you find a construction defect, you should initially discuss the matter with your contractor. The contractor might agree to fix the defect. If the contractor disagrees there is a defect or refuses to fix the problem, then you should consider contacting a law firm like Aultman Law to discuss your options. Oftentimes a contractor will be more motivated to resolve your issue when you are represented by legal counsel.
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