Construction Defect Litigation for Residential Property Owners

Construction defects can be devastating for new homeowners, and many homeowners are unsure how to handle them. These defects can range in severity, and the applicable deadlines for filing a claim vary depending on the circumstances.

If you know you need the help of an attorney, the team at McNicholas & McNicholas, LLP, offers free consultations. Contact us today to request yours so we can learn more about your situation and outline the legal options available to you.

Types of construction defects

There are many types of construction defects. They range from mild to severe. Some examples of construction defects include:

• Deficiencies due to poor craftsmanship
• Design deficiencies due to inadequate blueprints that impact the structure
• Material issues that impact load-bearing elements
• Subsurface deficiencies impacting the foundation that could lead to long-term issues

For certain new residential units, homeowners generally must follow a pre-litigation process in California, which we’ve outlined below. If you suspect any of these issues with your home, we encourage you to keep reading or speak to an attorney to make sure the process is followed correctly.

Available remedies

Each case is unique, so the remedies available will depend on the specific circumstances. In general, the following remedies may be available for construction defects:

• Reasonable repair costs or, for a detached single-family home, the decrease in current value caused by the defect, whichever is less, subject to limited exceptions
• Compensation if relocation and temporary housing are required
• Reasonable investigative costs for established violations, plus legal fees or other costs recoverable under a contract or statute
• Emotional distress damages when supported by personal injury or a separate actionable wrong

If you are uncertain what remedies may be available for your case, we encourage you to speak to a knowledgeable construction defect attorney to learn more.

Potential construction defect claims

Depending on whether the Right to Repair Act (SB 800) applies and whether the claim involves personal injury, potential legal theories may include:

• Strict liability: It imposes liability whether the builder knew of the defect or not. This may be applied depending on the circumstances.
• Breach of express warranty: A builder may be liable for failing to meet specific promises made about the home, materials or workmanship.
• Negligence: Construction professionals have a duty to use reasonable care when building for property owners, and breaching this duty may be negligent.
• Breach of contract: Most construction contracts have detailed guidelines regarding quality.

An attorney helps clients determine the potential basis of a construction defect claim. They also help them through the pre-litigation and litigation process.

Who may be liable?

There are a lot of professionals involved in building a new home. One or more of the following may be liable, depending on the defect and circumstances:

• Developers
• Contractors and builders
• Subcontractors
• Designers
• Material manufacturers

An experienced attorney helps clients determine liability. They also help them gather the required evidence to create a strong claim against the liable party.

Construction defect litigation FAQs

Below, we’ve answered common construction defect litigation questions we receive:

What is the Right to Repair Act?

The Right to Repair Act outlines how homeowners must handle defects involving new residential units whose purchase agreements were signed by the seller on or after January 1, 2003. The act details homeowner rights and builder responsibilities. The act lists pre-litigation activities and notice requirements. Failure to follow the pre-litigation process may result in delays or a stay of the litigation until the homeowner complies.

What are the notice requirements?

Notice requirements refer to the pre-litigation process we list below. When a defect is found, the homeowner must:

• Notify the builder in writing of the defects
• Allow the builder to complete an inspection to verify the defects
• Review the remedies suggested by the builder

Homeowners generally must allow a timely and compliant repair, but they may later pursue litigation over an unresolved violation or inadequate repair, or if the builder fails to follow the statutory process.

How long do I have to file a claim?

It depends. In California, the statute of limitations varies depending on the type of defect. Deadlines generally range from one to ten years, depending on the part of the house that contains a defect. Homeowners are encouraged to speak to an attorney.

How do defect claims impact residential property value?

Depending on the defect, a residential property may be valued less than it would be without the defect. Getting the defects fixed may help to improve the market value.

How do defect claims impact residential property safety?

Some construction defects make a residential property unsafe. Examples include:

• Structural issues
• Electrical issues
• Defects leading to water intrusion
• Mechanical system failures

Some construction defects can cause a building to not be up to code, and others may be so severe that they cause a building to collapse. We recommend that anyone dealing with a significant construction defect speak to an experienced attorney about their legal options.

What is the pre-litigation process?

The state of California requires pre-litigation steps for some residential homeowners. Written notice must be submitted to the builder before litigation is initiated. The builder is then allowed to complete an inspection to verify defects and may offer to repair any violations. Homeowners generally must allow a timely and compliant repair, but they may reject a cash-only offer.

It’s recommended to contact a construction defect attorney to learn more about the legal process and options available so mistakes aren’t made.

How can a construction defect lawyer help clients with the litigation process?

Construction defect attorneys help clients through the entire legal process. They provide peace of mind and legal insight. With a construction defect claim, documenting evidence is critical for a strong claim. Attorneys help their clients to:

• Capture detailed photographs and videos
• Maintain written records and timelines of all activities and interactions
• Gather repair estimates and reports
• Preserve damaged materials
• Contact a qualified expert for an opinion

An experienced attorney also advocates for their clients, represents them in court, and negotiates with insurance companies. Keep reading to learn how you can request a free consultation.

Contact McNicholas & McNicholas, LLP, for a free consultation today

Construction defects can feel devastating for new homeowners. And the process to request compensation may be daunting for those not familiar with it. At McNicholas & McNicholas, LLP, we understand how homeowners feel. We offer free case evaluations to hear the specifics of a case and educate individuals on the legal options available. Contact us today to request your free consultation.