- Who is legally responsible for defective construction?
- What claims can I pursue?
- I bought my home a few years ago. Can I still pursue legal remedies now?
- I did not buy my home from the builder; can I still file a construction defect claim?
- What kind of damages can I recover?
- During the construction defect litigation, do we have to move out of our home?
- How much does construction defect litigation cost, and how do you pay for it?
In many of our cases, we represent owners of numerous single-family, detached residences in the same development. Following are some questions we often hear regarding construction defect litigation on behalf of owners of single-family residences:
Depending on the facts, the developer, the general contractor, the design professionals and engineers, relevant subcontractors and material suppliers can all be liable - and usually they are insured.
It all depends on the facts of your case. For residences in California sold by a builder prior to January 1, 2003, claims against the builder frequently include negligence, strict liability in tort, breach of contract, breach of warranty, breach of certain "implied covenants", fraudulent misrepresentation, and fraudulent concealment. Defects due to the negligence of a design professional or engineer, subcontractor, or material supplier are also actionable. In California, for projects sold by a builder after January 1, 2003, a homeowner can pursue claims for failure of the builder to comply with a list of "functionality standards" adopted by the California Legislature. The homeowner may also pursue claims for breach of contract, fraud, and statutory violations.
In Arizona claims against the builder frequently include breach of contract, breach of express warranty, and breach of implied warranties. Arizona statutes require that the builder be given notice of the defects and an opportunity to inspect and either repair or offer damages for settlement prior to the filing of a lawsuit. Note that these statutes do not apply to arbitration.
Some purchase contracts in Arizona contain a binding arbitration agreement which attempts to limit a homeowners ability to file a construction defect claim in a court of law by requiring the dispute be settled by an arbitrator or a panel of arbitrators. If arbitration is used to resolve the matter, the decision that is made is as binding as one made by a court of law.
Most likely yes. There are time limits specified in the law that govern construction defect litigation. You must act within these Statutes of Limitations, which vary depending on the type and age of the structure, type of defect, and a variety of other factors.
Even though you didn't buy your home directly from the builder, as long as you discover and file the lawsuit within the time limits specified by law, you still have rights under negligence and/or warranty causes of action.
Generally you are entitled to the projected cost of repair or replacement, or the amount of the reduction in value of the home due to the defects, whichever is less. However, that "whichever is less" rule is subject to a frequently applicable exception called "personal use", resulting in recovery of the full cost of repair or replacement. Other potentially recoverable damages include the cost of investigation, relocation and storage, and other costs recoverable by contract or statute. Punitive damages are also available in cases in which fraudulent misrepresentation and/or fraudulent concealment are found.
No. Generally inspections and any testing can take place while the residence is occupied.
There are a variety of ways to structure the fee arrangement, varying from hourly fees plus costs to a contingent fee agreement. In a contingent fee agreement, you do not pay any legal fees unless, and until, there is a recovery. Other costs of the litigation are typically advanced by the law firm and recovered from proceeds of the case.