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Construction Defect

To answer the question, "What are construction defects," would depend on your point of view, in other words, that of a homeowner, contractor, builder, product manufacturer, et cetera. There is a difference between what would be considered just a nuisance claim and an actual construction defect claim. Construction defects can be as complex as foundation issues that threaten the structural integrity of a building to more aesthetic issues such as improperly-applied stucco. Although there is controversy in defining what are construction defects, trial courts have grouped construction defects into four categories. These categories will help you understand what construction defects are.

1. Design Deficiencies in Engineering

The first category is design deficiencies which sometimes stem from the work of architects or engineers. These design professionals design a building or design a specific system that does not function as it was intended to function. The end result is a product that is defective. An example would be a roof that has been designed to be aesthetically pleasing and complex in design but is prone to leakage.

2. Material Deficiencies

The second category is material deficiencies. Using inferior building material can cause a variety of defect issues. An example of this type of defect that is fairly common is windows built with poor materials that leak even after being installed perfectly. Another example is material used inside of a wall that causes issues such as wall leaks or moisture damage. The building material that would be in question could be the building paper, particle board, roof shingles, et cetera.

3. Substandard Workmanship

The third category is construction deficiencies, also known as substandard workmanship. This category of construction defect usually becomes evident with water damage through some part of the actual building structure. Other examples of such a defect would be rotting wood, pest infestations, and cracks in floor slabs or in the foundation. There could also be evidence of
construction deficiencies in lack of adequate sound insulation, electrical problems, plumbing issues, and/or inadequate fire-resistive construction between housing units.

4. Subsurface or Geotechnical Problems

The fourth category is subsurface or geotechnical problems. An expansive soil condition is a perfect example of this concern and is commonly found in California and Colorado. This issue occurs when housing developments are built in areas where water once stood, or is hilly, both resulting in an unstable foundation upon which to build a house. If the builder does not prepare the soil properly on this type of subsurface condition, then inevitably you will begin to see symptoms of this construction defect. This also holds true if the builder does not keep in mind this type of potential soil issue when deciding on structure design. As a result, you may see problems including but not limited to vertical and horizontal settlement, slope failures, flooding, cracks in floor slab and hardscape (all non-plant structures, such as fountains, benches, or gazebos, that are incorporated into a landscape). An extreme case would leave a building uninhabitable.

Common Symptoms of Construction Defects

It is sometimes hard to determine exactly what the issue is and, again, whether or not it is a construction defect or merely an annoyance that is an easy fix. It is important to first understand the symptoms. What exactly is the problem being experienced?

Are there issues such as leaks streaming from a uniquely-designed roof? At times, an architect may design a structure that, although aesthetically beautiful, has flaws in its functionality. If leaks are seen or there is moisture build-up in properly-installed windows, this can be a red flag that the builder or contractor could have used poor materials. There may be a construction defect if there are cracks in the slab, the floor of the garage, or in the stucco or drywall. If there are visible issues with any of the previously-mentioned issues or rotting wood, mold, pest infestations, plumbing issues, electrical problems, or other damage, these may be signs of construction defects.

A note about lack of code-required access to crawlspace

If it is discovered that there may be issues with the crawlspace in a home, it is
important that a repair plan is decided upon right away. It may be that the needed construction defect repair cannot be performed until the crawlspace is brought up to code, and, in turn, whatever the construction defect may be can now affect other areas of the home. Lack of code-required access to a crawlspace can turn a small construction defect into a crippling problem.

Non-Structural Causes

Construction defects are not always caused by the structure of a home or building but instead can be the result of the land that supports it. When a structure goes up, part of the planning is considering what type of foundation, i.e., the land, it sits on. If the proper preparation of the land and the factors that go into building on a certain type of soil are not taken into consideration, construction defects are bound to develop. A good example of this subsurface defect is building on expansive soil. If the preventative elements necessary to build a stable house on generally unstable and/or expansive soil are not used, a homeowner will see severe cracks form, for instance, in the stucco, sidewalks, driveway, dry walls, ceilings, et cetera. Another effect could be when a door that used to slam shut will no longer close all the way.

How Construction Defects Affect Condominiums, Townhomes, and Homeowners Associations

There are numerous issues that can be categorized as a construction defect, and defects occur in varying degrees of severity. In addition, the definition of the construction defect can vary based on what type of home you have and if there is a homeowners association affiliated with it. This is why it is important to understand how construction defects affect condominiums, townhomes, and homeowners associations.

Construction defects have impacted the condominium market in various ways. One theory is that there was a clear lack of quality workmanship put into condominiums being built in the "booming" 1980s. In the past, the liability of any construction defects discovered after the purchase of a property was shared between the seller and the buyer. New laws now in place have shifted the liability to the seller, even if the defect was not discovered during construction.

The same general notion applies for townhomes. Today, it is important to understand what constitutes as a construction defect and what the owner’s rights are in regard to dealing with it. Whether one owns a condominium or a townhouse, he or she has the right to question the builder, seller, developer,
and any other professional that was part of this building process.

Some would argue that construction defect litigation happens too often. The fact still remains that if there is a construction defect in a home, it cannot be the fault of the homebuyer. Litigation for construction defect cases has changed dramatically in the last twenty years. Many argue that it is the homeowners associations that are partly to blame for the increase in these types of litigation. This is hard to prove, since there are very few statistics about this theory.

Homeowners associations sometime argue that they are feeling the pressure of being accountable to their homeowners regarding their fiduciary responsibilities. The majority of these construction litigation cases settle before reaching court. But for those cases that do go to trial, parties involved sometimes do not end with the homeowner and the homeowner association but may include a general subcontractor, builder, and the many other professionals that took part in the building process.

Even homeowner associations have their own role. The homeowner associations, or HOA, as they are sometimes called, are often controlled by the builders or developers in the first year (maybe more) of the new home. Clearly, their goal is to make the fewest number of repairs possible. But once the specified time period is over, the homeowner is then left with the responsibility of any potential problem and the repair bill that goes along with it.

On a more positive note, the many potential issues of construction defects with condominium and townhome developments has forced builders to make attempts to try to alleviate or at least decrease these types of construction concerns. Builders have improved their quality control process by using privately-retained inspectors that will review the city and county inspections while keeping detailed records. Builders have also begun offering long-term warranties that will protect the buyer from certain construction defects.

It is essential to learn about how construction defects affect condominiums, townhomes and homeowners associations. No matter what part one is playing, whether a homebuyer or a member of a homeowners association, a construction defect can be a very hard issue to deal with without assistance from someone with proper knowledge and assistance.

Preventative Steps and Interior Signals

Identifying whether or not a problem exists that falls under “construction defect” or is simply a problem that needs a “quick fix” is the first step. For example, a home should be inspected carefully to discern whether there are issues with the roof. An architect may have an impressive roof design that has no chance of working properly. Leaks or moisture buildup in properly-installed windows can also be a red flag that something is wrong. Look for cracks in the slab, garage floor, stucco, or drywall. Construction defects can also cause rotting wood, mold formation, pest infestations, plumbing issues, electrical problems or other damages.

Exterior Signals

In determining whether or not a problem with a home could be a construction defect, it is also important to factor in the land upon which the house sits. Has the builder prepared the soil properly, and does the house structure itself take into consideration the soil makeup? If this didn't happen, construction defects will be inevitable.

When a handful of homes have detected valid construction defects, the rest of the neighborhood could potentially be at risk, and neighbors will soon come to their own realizations. They will determine that they too may have construction defect issues, and this is especially true if they used the same builder or built their home on the same type of land. Those neighbors that do not necessarily have evidence of any construction defect will still...