Legally, when does a construction defect exist?

A construction defect exists when the components of a building (roofs, windows, siding, electric, plumbing, etc.) and/or the building’s surrounding infrastructure (sidewalks, walls, parking lots, etc.) fail to perform their intended function or do not conform to applicable building codes. The primary source of these codes is the Uniform Building Code.

What types of construction defect problems are most common?

Some of the most common defects are improperly installed windows, doors and roofs, missing or improperly installed fire stops and shear walls, inadequate insulation, improperly installed electrical and plumbing systems, and inadequately fastened roofing members. Another major problem results from improper drainage, especially in areas where housing is built on hillsides. This often results in subsidence, that is, the slippage of ground. In most cases, subsidence leads to cracking of walls and hardscape such as patios and pool decks, doors that don’t open and close properly, and uneven floors. In the worst cases, subsidence can extensively damage homes and buildings, and even destroy them.

What are the most common indicators of construction defects?

Staining from water intrusion is one of the most common, followed by cracking of walls and standing water on porches or other flat areas adjacent to homes and buildings. Buckled siding, cracked stucco, and water leakage from improperly installed roofing shingles and roofing systems can also be a cause. Particularly worrisome is the presence of a white powder-like substance called sulfate on concrete, potentially representing chemical attack from the soil. Other indicators that a home or building has water intrusion are the presence of rotting and/or moldy wood, wall boards, carpeting, and drapes, as well as warped flooring such as linoleum.

If everything looks fine, can there still be construction defects?

Yes. Though construction defects that result in litigation are usually major problems that are readily apparent and destructive, many homes and buildings have latent defects that aren’t revealed until the investigative process uncovers them.

Does damage to areas surrounding buildings qualify as a construction defect?

Yes. If the cracked concrete and asphalt are part of the overall project, such as a building’s foundation, parking areas, garage floors, streets, sidewalks, etc., then its considered a construction defect. This also applies to property walls, as well as swimming pool decks and other recreational facilities if they are commonly owned and supported by the homeowners through their homeowners association. Cracking or deterioration of this hardscape usually is the result of ground movement. Common area landscaping that is not correctly planned and installed can be a serious defect.

Is the presence of mold/fungi a construction defect?

Fungal growth can often be linked to construction defects, especially those defects that permit water intrusion into the building. When this occurs, the mold must be completely inventoried and removed pursuant to hygienic guidelines. All sources of leaks must be located and fixed, and sometimes building components must be replaced. The claim against the builder must include a demand for funds sufficient for all of this work and necessary replacement, and any relocation needs. If the mold has caused adverse physiological reactions, those people affected should be evaluated by a specialist. If appropriate, a personal injury claim is filed.

Is noise considered a construction defect?

Yes, especially in a multifamily project where units share common walls. Allowable noise levels are set by building codes, and if the levels go beyond limits set by the codes, then the noise can be considered a defect. Noise levels are usually controlled by the amount of insulation between common walls, so if the noise goes beyond the allowable levels, it probably means there is inadequate — and therefore defective — insulation.

Is lack of proper insulation required for energy conservation a defect?

Yes. Both state and local building codes are concerned with energy conservation and, among other things, require certain levels of insulation in both ceilings and walls to retard loss of heated or cooled air. If there is little (less than 6 inches) or no insulation in the attic, then it probably does not meet code requirements.

What about built-in appliances?

Appliances are not normally considered part of the actual building structure and thus are not covered by building codes, but are covered by the manufacturer’s warranty. If there are common problems with an appliance in homes in a development, then a lawsuit may be necessary if the builder and/or manufacturer are unresponsive.

How about leaking lawn sprinklers?

If the sprinklers are part of the building package that was purchased, or part of the common areas controlled by the homeowners association, then they are required to be installed and operating properly. If a builder improperly installs the sprinklers or other components of the irrigation system, including drainage, this constitutes a defect that the builder must repair. A leaking irrigation system and poor drainage can lead to major problems if not corrected, such as soil erosion and/or damage to structures.

What is sulfate damage and what can it do?

Sulfate is a naturally occurring mineral salt compound that can destroy concrete foundations and concrete hardscape. Soil deposits are often rich in gypsum, and are laced with gypsum veins. Gypsum is a form of calcium sulfate (CaSO4). Sulfate deposits in soils with a marine origin are also high in sodium sulfate (NaSO4) and magnesium sulfate (MaSO4). When the soil becomes wet from irrigation or rainfall, the sulfates dissolve into the water and seep into the porous concrete. The sulfate eats away the cement “paste” that holds the concrete together. Once the deterioration starts, the damage to the concrete cannot be reversed.

If you have construction defect problems, what should be your first step?

Clearly and accurately document the specific problems, including a written description of the defect and its specific location, and take pictures if you can. Talk to your neighbors and association manager (if you have one) to find out if anyone else is experiencing the same problem. If the property in question is a condominium or some other type of a project where a homeowners association is responsible for the maintenance and upkeep of the buildings, your association manager or board of directors may want to meet with the builder of your project. Frequently a builder will cooperate and fix the problems, especially if your home or building is still covered by warranty. Even then, an attorney should be consulted to make sure the time spent in negotiations and resulting efforts to repair do not take you beyond the deadline (i.e. statute of limitations) for filing suit if that becomes necessary.

What if the builder doesn’t cooperate?

We recommend you contact a lawyer to discuss your legal rights and remedies. Sometimes just the idea that you, and perhaps your neighbors or homeowners association might bring a lawsuit, is enough to spur the builder to fix the problems. If not, bringing legal action may be the only way to resolve the issues, especially if they are so substantial that the builder cannot or will not spend the money to solve them. Once litigation is initiated, the builder, subcontractors, and insurance companies are usually involved.