How a Construction Defect Attorney Can Help You

When you’ve built and paid for a home or a renovation you do so with the expectation that the home is safe and will remain in good condition as long as you keep up with maintenance. Your new home will have passed inspections, but what happens when you discover defects that slipped past the inspectors during the building process or even if you hired one post build?

In the most straightforward cases you’ll contact your contractor, they’ll correct the mistake, and you can get on with enjoying your new home. However, in some cases the contractor may not be so responsive and eager to resolve the issues. When you’re dealing with a contractor who isn’t willing to correct a defect, you may need to pursue legal action.

The good news is construction defect attorneys are legal experts in dealing with such matters. They can evaluate your situation, review your contract, and advise on the best path forward.

In this article we’ll cover the common construction defects found in new homes, the process for getting them fixed, and what construction defect litigation looks like when necessary.

What is a Construction Defect Attorney?
Because construction defects are a very specific type of problem, dealing with them often requires an attorney who is familiar with how to handle them both substantively and procedurally.

People who have had construction work done, whether it be a new home build or a major renovation, when the work is not up to standards or defective they deserve compensation under the law. Construction defect lawyers help individuals navigate their rights and pursue the easiest path to compensation.

The results can take the form of the contractor returning to repair the defect, or paying a judgment if the case goes to court or arbitration and the homeowner proves their case. In many cases, depending on your contract, court can be avoided and a settlement will occur through negotiation or mediation. Even where negotiation is a possibility, having a construction litigation attorney assist you will be a powerful asset to ensure you get all due compensation.

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What causes a construction defect?
Construction defect issues 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

  • Defective building materials

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What are the Common Construction Defects?

In Florida, a construction defect means a deficiency arising out of the design, construction, repair, or remodeling or real property. Generally, there are three general types of defects.
Design Defect
The way something was designed or design of a specific component of a home that's led to damage. For example, every house should be able to handle water runoff. If there’s a flaw in how that runoff is routed, the home can experience flooding issues.
Construction Defect
The design was good but the contractor made some kind of mistake and didn't build it to the design. Examples of construction defects include poor window and sliding door installation, roofing defects, foundation cracks, drywall cracks, leaks, uneven floors, and electrical problems.
Code Violations
The work is done, it's been designed, it's been built, but it violates the building codes in some way or another. Some of the most common code violations in Florida are related to window installation, stucco application, roof strapping problems, trusses, connectors, and roof sheathing. These are strictly regulated codes, because of Florida’s hurricanes.

In Florida, it’s common to see construction defects in residential property with drainage, air conditioning, and other water-related problems. It could be a roof that’s allowing water to come in, poor stucco, and even issues with the foundation and vapor barriers. In a humid and high-precipitation environment like Florida, water damage is the biggest issue homeowners face because of the likelihood of mold.

The most common types of defects involved in litigation include:


  • Mold

  • Water issues

  • Electrical and heating (HVAC) systems

  • Landscaping and soil

  • Faulty drainage

  • Foundation, floor, wall, and roof cracks

  • Structural failure

  • Plumbing

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How do I Claim for Defective Workmanship?
In Florida, there's a statute, chapter 558, which explains how to put your contractor or your builder on notice of a claim for a defect that you want them to fix. In general, you’ll begin the claim process by sending a written notice to the contractor which sets off certain obligations that the contractor has to try to address the defects. You must first give the contractor a chance to remedy defective construction prior to taking the claim to the litigation level.

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Is a Defect a Breach of Contract?
Yes, in most cases it is. There is a contractual obligation implied in construction contracts that the contractor is going to deliver the work in a good and workman-like manner. In Florida, this is one way to describe the way work is supposed to be performed in a construction contract and certainly implies the work is going to be up to code and not present dangerous circumstances to the owner.

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How Long Can You Claim Latent Defects For?
In Florida, once you know or should know of a defect, you've got four years to do something about it. However, sometimes defects can be latent, and what that means is that they are hidden and not an obvious defect. A latent defect is something that's hidden and only reveals itself over time. In the case of a latent defect, your four years begin from when you first discover the defect.

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How Long Do I Have to Sue a Builder?
You have four years from when you discover the defect to file the lawsuit against the builder up to a total of 10 years. For example, if you discover a latent defect in year eight, you’ll only have two more years to file a claim. If the defect remains hidden for over 10 years, you won’t be able to file any kind of claim or lawsuit.

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How do you hold a builder accountable?
For most people, the goal is to try to get the contractor to do the right thing without having to go through the court system and a long drawn-out legal battle. So to avoid that, there are a couple of things you can do. Number one is to send the notice of claim to the contractor, which under Florida law gives them 30 days to come out, inspect the defect, and make an offer to you of how they're gonna propose to fix it or what kind of money they might want to pay you in lieu of it.

If the contractor evaluates it and concludes they haven't done anything wrong, they tell you that as well, and you can move on to the next steps. Another good way to hold your builder accountable is to file a license complaint with Florida's Division of Business and Professional Regulation which oversees construction licenses. Making a complaint with them will initiate an investigation process that lots of times can result in the contractor coming back and fixing their mistakes.

Where Should you File a Complaint Involving a Construction Dispute?
If you've gone through the notice of claim process and there's still an issue and you think you want to bring legal action or need to bring legal action against the contractor or the builder, the first place you need to look is in your contract to see whether or not you can bring that in a court of law or whether you're obligated to bring it to an arbitration panel. If your contract provides that you have to bring disputes into arbitration, then that's where you need to file the claim. But if it's silent in that regard then you're free to bring a complaint of your construction dispute to your local court. Either way, you should consult with a construction Defect Lawyer.

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Parties Responsible for Construction Defects
When you have a design defect, the responsible parties include people like architects and engineers. Normally people will have a relationship and a direct contract with a contractor and that contractor will have subcontracts with various specific trades and plumbers, electricians, and so forth. You can hold any of those parties responsible for a construction defect. Ultimately the contractor you have the agreement with is responsible, but other people who work on your property who do defective work can also be held responsible for the construction defect.

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What does a construction defect lawsuit involve?
When you move forward with a lawsuit against a contractor, builder, subcontractor, architect or engineer you’ll need an experienced construction defect attorney and an in the field expert who can back your claim.

For example, if you’re filing a lawsuit against an architect for a design defect, you’ll need an architect to advise you and verify exactly what your architect did wrong. You might need an engineer or general contractor to give an opinion that the defendant did in fact do something wrong, what they did wrong, and what they should have done differently.

Once the case is filed, the opposing parties will have their experts lined up as well which could set the stage for a long drawn-out lawsuit. It can be complicated for a jury to process the testimony from both sides and figure out if the work was defective and what your damages should be.

If you have a strong and obvious case, you should be able to settle outside of court, if you’re able to make a strong enough case to the contractor and let them know you’re willing to go to court if necessary. They don’t want to get dragged into a drawn-out legal battle any more than you do.

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Who Pays for Attorney fees in a Construction Lawsuit?
In Florida, the default rule is that everybody is responsible for their own attorney's fees. However, in two circumstances that changes. One is if there's a contract between you and the contractor that has a specific provision in it that provides for attorney's fees awarded to the winner or the prevailing party in any type of litigation arising out of a claim.

The other circumstance is if there's a statute under Florida law that provides for attorney's fees to the prevailing party. One example of that is a construction lien statute in Florida where if a contractor isn't paid and they think they're owed money, they can put a lien on the property that they're working on. That statute has a prevailing party attorney fee provision in it. And a lot of times if the owner hasn't paid, one of the reasons they haven't paid is because they feel that the work is not done up to standard and yet the contractor feels they're still entitled to get paid for it.

In this case, the owner might withhold payment, the contractor might record a lien, and then if they end up in litigation, all those issues about the validity of the lien and whether the work was done up to the standard will be sorted out.

If the owner wins, that means that the contractor will lose their lien claim and that will give the owner the right to get their fees paid from the other side, which really underscores how important it's to make sure that you have a construction attorney look at your contracts before you get into a project.

How likely is it you’ll get paid for a construction lawsuit judgment in your favor?
You may have heard stories about contractors losing litigation cases and shuttering their doors only to open up business again under a different name. Keep in mind, there's somebody behind the company who has a license who is responsible for the obligations of the company, and the companies that try to do that don’t make it far with the business. The responsible individuals behind the company are still stuck with having a problem continuing working under their license if there is an unpaid judgment.

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Can you collect pain and suffering damages in a construction lawsuit?
As much stress as dealing with a construction defect claim can cause, generally you will not get awarded pain and suffering damages in a lawsuit, unless you somehow have a doctor who's willing to come in and say that as a result of this specific situation, you have suffered certain physical disabilities or impairments.

There are times though when work might be done by an unlicensed person, and if that unlicensed contractor does work and that work causes damage to a person as an injury or even causes additional damage to the person's home they're working on, Florida law allows you to get three times the actual damages from that person. So that helps offset some of those areas related to pain and suffering.

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How do I hire a construction defect lawyer?
Just like anything else, construction law is a specialty. You want to make sure you hire an attorney that has experience handling construction defect claims. You can start with a Google search in your area. Read available reviews and look for websites that demonstrate experience in the area of construction defect law.

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