Frequently Asked Questions
Tomassian,Throckmorton & Inouye LLP believes in educated clients. Click on the questions below for answers to the most commonly asked construction defects questions.
- What is a construction defect?
- What causes a construction defect?
- What are common types of construction defect cases?
- How is a construction defect proved in court?
- What kind of damages can be recovered?
- Who pays for the damages?
- Are there any time limits on filing a lawsuit for repairs?
- Who has standing to bring a construction defect lawsuit?
- Who is responsible for construction defects?
- How do I recover if the builder/developer is out of business, cannot be located, or is bankrupt?
- Should I make repairs while the lawsuit is pending and can I recover those costs in the lawsuit?
- Will my insurance company cover damages caused by construction defects?
- Can I sell my home during a pending lawsuit?
What is a construction defect?
A construction defect is a condition that reduces the value of the property or building. Some defects are obvious, such as water seepage. But many are less obvious and do not become apparent until years after the building was built.
What causes a construction defect?
Construction defects can arise from a variety of factors, such as poor workmanship or the use of inferior materials. Many arise from a combination of factors, including:
- Improper soil analysis and preparation
- Site selection and planning
- Civil and structural engineering
- Negligent construction
What are common types of construction defect cases?
The most common types of defects involved in litigation include:
How is a construction defect proved in court?
It depends on the defect. Some defects are obvious and are called patent. Other defects are hidden or do not become apparent until years after the home was built. These defects are called latent. A successful construction defect litigation claim relies on the testimony of experts who specialize in specific areas of construction. The experts investigate the defect, evaluate the cause, and make recommendations for fixing the defects.
What kind of damages can be recovered?
It depends on the facts and circumstances of your case. But in general, the cost of repairs and the decline in the value of your home may be recovered. Additionally, recoverable damages may include the loss of the use of property during the repair, the cost of temporary housing, court costs, and in some instances the attorney's fees.
Who pays for the damages?
Typically, the defendant's insurance policy in effect when the damage was first noticed will be responsible for paying the damages.
Are there time limits on filing a lawsuit for repairs?
The statute of limitations (the time limit for filing a suit) depends on a number of factors. Generally, the shortest time limit is three years from the date the defect is discovered, or should have been discovered. Other statues start from the date of completion of the home. It is important to take action immediately if your home has a construction defect.
Who has standing to bring a construction defect lawsuit?
If the construction defect is isolated to one single family home, the homeowner may sue. If the defect is on common areas or shared by all or many owners, homeowners associations have the power to institute and defend litigation. A class action lawsuit is a common tool used by homeowners who share a builder and face similar construction defect problems.
Who is responsible for construction defects?
There may be several responsible parties, but generally the responsibility will lay with the general contractors, developers, and the builders of residential structures, even if the work was performed by subcontractors or if the defective materials used in construction were manufactured by others. Architects, designers, and other involved parties may also be defendants in litigation.
How do I recover if the builder/developer is out of business, cannot be located, or is bankrupt?
Unfortunately, the builder is not always still around when the defects start showing up. The unscrupulous builder may create a new corporation for the construction project. After construction is completed but before problems appear, the corporation is dissolved or the builder files for bankruptcy. The homeowner may have a warranty policy for specific features of the home such as heating, plumbing, electrical, and structural components. Before bringing any lawsuit, homeowners and associations should carefully balance the cost of litigation against the amount of the possible recovery. Attorneys at Throckmorton, Beckstrom & Tomassian, LLP can research and build a case against unscrupulous builders and developers.
Should I make repairs while the lawsuit is pending and can I recover those costs in the lawsuit?
Usually the homeowner or homeowner's association is required to protect property from sustaining additional damage. Such costs are recoverable in the lawsuit. Failure to perform routine maintenance and reasonable repairs can cause or contribute to additional damages, which could be offset from the owners claim and lead to the defense of failure to mitigate damages.
Will my insurance company cover damages caused by construction defects?
The language in most homeowner or association policies has dramatically changed over the last few years. Insurance companies have begun to exclude certain types of damages which were previously covered. Even if your policy appears to exclude coverage, it may still cover the cost of investigation of the defects by an expert. A close reading of the policy by a Throckmorton, Beckstrom & Tomassian, LLP attorney may help you answer this question.
Can I sell my home during a pending lawsuit?
Generally homeowners are allowed to sell their home during the lawsuit but you may be required to disclose to a potential buyer that the home is involved in litigation.
Still have questions?
Call the attorneys at Tomassian, Throckmorton & Inouye LLP for answers. Our Irvine, California office can be reached at 949-955-2280 or by visiting the Contact Us page.
This information is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney who knows construction defects law and court rules, because the facts of each individual case are different and may change the application of the law.