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Contest That Defect Claim

By Alex Barthet

Whether a project is big or small, it seems inevitable that construction defect claims will surface. While the nature of these claims many vary, common patterns are generally present and construction professionals would do well to understand the distinctions.

Construction defect claims often fall into one of four categories: design defects, material defects, workmanship defects and subsurface defects.

Design professionals (such as architects and engineers) sometimes cause design defects. Building design can lead to issues in a structure’s performance, even if the design plans are followed precisely by everyone building the project. For example, complicated roof structures can lead to cracks, water intrusion or increased susceptibility to wind damage.

There can be material defects resulting from inferior or defective building materials. Using inadequate materials in a project can result in issues. For example, even though a window is properly installed, if it was manufactured and delivered with a defective seal, it may still become the source of future problems.

Workmanship defects are most often the leading cause of defect claims, leading to all types of construction problems. Even when plans are properly drawn and only the highest quality materials are delivered to the work site, careless installation can turn a project into a nightmare.

Of course, subsurface defects sometimes exist. They result from problems with the actual construction site, such as expansive soil conditions, subsidence issues or contaminated soils.

Several avenues are available to challenge all of these types of construction defect claims:

1. Procedural Prerequisites:

Several states have enacted laws requiring a claimant to provide notice of the alleged construction defects and to provide those that may have caused them an opportunity to fix them. In most instances, this is a prerequisite to begin litigation. If the claimant fails to do this, then the defect claim may be (at least temporarily) barred.

2. Statutes of Limitation:

Once a claimant discovers or should have discovered the construction defect, most states have a time period (often four years) within which the claim must be brought to court. If the claimant fails to bring the claim during the allotted time period, then the claim may be time-barred.

3. Statutes of Repose:

Similarly, most states have set a time period (often 10 to 12 years) within which a claim can exist. Under such a statute of repose, if a claim is not brought within the stated time period, it will not be allowed at all, whether the defect was actually discovered or not. This is particularly

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