Construction Defect FAQs
Frequently Asked Questions (FAQ’s) And Common Mistakes By Homeowners
- My builder is ignoring my requests. I am having problems with my home, and my builder is not being responsive. Do I need to hire a lawyer and file suit?
- I’m not the original homeowner. Can I still sue the builder?
- My house is older. Can I still sue?
- How much money is this going to cost me?
- What are the statute of limitations for a construction defect lawsuit?
- Why do I need an attorney when my builder has given me a written warranty?
- My home warranties have expired. My builder says that I have no remedy for problems I am having with my home because they are not covered by my written warranty, or the time to make a claim under that warranty is expired. What should I do?
- My builder says there is an arbitration clause in my contract and that I have given up my right to a jury trial. What do I do?
- What kind of damages am I entitled to?
- What is a class action? Why do I keep getting mailers from out-of-town attorneys inviting me to join a lawsuit?
- Will a lawsuit hurt my property value and make it difficult to sell my home?
- I heard that there is a new law that prevents homeowners from suing the builders on new houses? How does this affect me?
- What is a defect? My builder says that I am being too fussy about the condition of my home and that no home is perfect. When does a problem or issue become a “defect?”
- What if I live in or own a condominium or townhome rather than a single-family residence?
- I think my house is making me sick — what should I do?
- What should I bring to my first meeting with my lawyer?
To discuss your questions in more detail with an experienced construction defect and toxic mold litigation attorney, contact Colderbank Law Inc. online or by calling 916-930-6144, toll free at 888-426-9431.
1. My builder is ignoring my requests. I am having problems with my home, and my builder is not being responsive. Do I need to hire a lawyer and file suit?
If you have only attempted to contact your builder by telephone, stop, and put it in writing. Builders should be given a reasonable chance to correct its mistakes. However, because of short and differing statute of limitations (the period of time the law allows for you to file your claim, in other words, your filing deadline to protect your claim, or forever lose your rights to bring your claim) in which you can pursue your damages, early consultation with a construction defect attorney is recommended to understand your legal rights and any potential suit deadlines that may be approaching.
Builders are likely aware of the precise date when the statute of limitation runs for both patent and latent defects–even if you do not. A builder’s promise to fix something, or its representation that there is not a problem, that the defect is minor, or that the warranty does not cover that defect does NOT mean the filing deadline for the lawsuit will not pass. In special situations, you may get some extra time, but don’t count on it. Again, early consultation with a construction lawyer is recommended. Back to top.
2. I’m not the original homeowner. Can I still sue the builder?
Frequently you can. This depends largely on when the home was built. You may also have recourse against building professionals, manufacturers, subcontractors, and repair contractors. Consultation with a knowledgeable attorney or construction defect firm like Colderbank Law Inc. should be made to make this determination. Back to top.
3. My house is older. Can I still sue?
It depends. This depends on a number of things, including, but not limited to–how old your home is; what caused the issue that you are concerned about and when you became aware of the problem; what other third parties were involved, if any. A construction defect attorney should be consulted to make this determination. Back to top.
4. How much money is this going to cost me?
All cases are unique. Colderbank Law Inc. does not treat all cases the same, many fee agreements are tailored to specifically suit your needs. Colderbank Law Inc. will work with clients to reach a mutually agreeable fee arrangement. Back to top.
5. What are the statute of limitations for a construction defect lawsuit?
The time limits for filing a lawsuit, demanding arbitration, or complying with various pre-lawsuit conditions, vary depending on who you are suing, the nature of the activity giving rise to your claim, the legal theory you are pursuing, and when you became aware of the defect. Statute of limitations and statute of repose are complicated and sometimes difficult to apply to your case. There is almost never a simple answer to the question of what is the exact date before which you must file suit or demand arbitration or be forever barred from bringing a claim due to construction defects. The various deadlines for making a claim or filing suit should be explored with a construction defect attorney or firm that represents homeowners as soon as you recognize that a problem exists. Back to top.
6. Why do I need an attorney when my builder has given me a written warranty?
There are a number of reasons that you may need an attorney even if you have a written warranty:
- As discussed above, strict dispositive deadlines exist that may prevent you from bringing suit against those responsible for the problems with your home. While you spend a lot of time submitting required warranty paperwork and slowly working your way through the maze that accompanies warranty claim processing, these deadlines may pass, barring your claims against the responsible parties.
- Most written warranties limit the remedies and have warranty coverage exclusions. These limited remedies may supply a “band-aid” repair, such as patching or painting over cracks in a wall, when the real problem is more serious. The problem may resurface because the real cause was never dealt with and, by then, your warranty may have expired and the deadline to file suit long passed.
- You may have legal claims other than those for breach of warranty such as negligence claims that may provide you with remedies not available under your warranty.
Their denial of warranty claims may not be legitimate. Keep in mind that many builders have a financial interest in denying your request because of it will either cost them money or because their financial interests are aligned with their subcontractors because of business relationships. Back to top.
7. My home warranties have expired. My builder says that I have no remedy for problems I am having with my home because they are not covered by my written warranty, or the time to make a claim under that warranty is expired. What should I do?
This is a frustrating and common problem that can often be dealt with. A homeowners’ claims against those responsible for construction defects arise from many sources, and the written warranty that some builders provide is just one of those sources. An attorney can discuss the legal theories that homeowners can seek in tort, contract, and possibly the Federal Magnuson-Moss Warranty Act.
When a builder tells you what your legal rights are, remember that the builder-developer is not a lawyer, and that the builder-developer is self-interested.
If you gave notice of the problem during the warranty period and the builder-developer failed to resolve the problem, or if the builder-developer assured you the problem would eventually stabilize, or if the builder-developer made repairs that did not solve the problem, you may still be able to obtain relief under the warranty even beyond the warranty period. In addition, standardized clauses in purchase contracts and warranty documents restricting your rights to just the written warranty may be void or of limited effect due to statute. Back to top.
8. My builder says there is an arbitration clause in my contract and that I have given up my right to a jury trial. What do I do?
It depends. Sometimes parties to a dispute must mediate before filing a lawsuit; other times it may be in your best interest to proceed with an alternate dispute resolution. A law firm that represents homeowners and is accustomed to construction contracts can analyze the agreement and should be help you determine what your rights are and the best way to proceed. If arbitration is necessary — having a construction attorney represent you in that process is advisable. Back to top.
9. What kind of damages am I entitled to?
It depends. Depending on the legal theories you pursue: breach of contract, breach of warranty, breach of warranty of habitability, negligence, strict liability, negligent misrepresentation, or fraud (see this link for a short explanation of some of these causes of action), different recoveries or damages may be obtained. Some of the money damages you may be entitled to are:
- Actual and compensatory damages, including the past and future costs of repairing and restoring your damaged home, and any contents damaged due to the defect (such as carpet and furniture damage due to leaking windows)
- Investigative costs and fees for construction defects may include different types of experts that are commonly used in construction defect cases, such as general contractors, structural engineers, soils engineers, geotechnical engineers, statisticians, and architects
- Compensation for your loss of the use and enjoyment of your home, and for your annoyance, inconvenience, aggravation, and discomfort
- Compensation for the expense of appraisal fees, storage charges, and cleaning costs
- Compensation for the reasonable cost of rental or similar housing during periods of repair or eviction
- Under limited circumstances, exemplary or punitive damages, which damages are intended to punish a defendant and deter particularly malicious or reckless conduct in the future
- Interest on your damages as permitted by law
- Attorney fees and costs if provided for in your contract
Depending on the circumstances of your purchase, you may be entitled to a rescission of the sales contract, where the purchase price is returned to you and the home is returned to the builder. Back to top.
10. What is a class action? Why do I keep getting mailers from out-of-town attorneys inviting me to join a lawsuit?
Some attorneys send out letters when they become aware of community-wide problems to solicit clients. Just because you receive these flyers does not mean that your home has problems. Sometimes only certain floor plans are problematic within a community. The possibility also exists that the attorney was not aware of any problems in your neighborhood, but are manufacturing lawsuits. It is difficult to know the difference. It is sometimes helpful to look at the specificity of the letter and the location of the law firm.
A “class action” is a lawsuit brought by a small group of people in their own name, individually, and in the name of other persons similarly situated, “representatively,” such as on behalf of persons facing similar construction defect problems. When forty homeowners join together in a lawsuit to sue their builder, this is not a class action, it is a mass tort. If two people join in a lawsuit, and sue on behalf of themselves and forty other people similarly situated, this is a class action.
Many people and attorneys refer to these types of lawsuits as class action instead of mass tort. It does not matter what you call the lawsuit, it is still treated the same by the courts. However, not all attorneys are created equal. Back to top.
11. Will a lawsuit hurt my property value and make it difficult to sell my home?
Defects in a home usually decrease the value of the home more than a lawsuit filed to correct those problems. Especially if the lawsuit provides the homeowner money to fix the defects. All issues with the home that materially affect the value of the home need to be disclosed to a future purchaser. What this means needs to be answered by a knowledgeable real estate broker or real estate attorney. Back to top.
12. I heard that there is a new law that prevents homeowners from suing the builders on new houses? How does this affect me?
Link to SB800 Article. Back to top.
13. What is a defect? My builder says that I am being too fussy about the condition of my home and that no home is perfect. When does a problem or issue become a “defect?”
Problems and issues with homes typically involve defects that require expert investigation and consultation. Defects that are common in these construction defect cases or litigation follow. But remember, frequently there are problems inside the walls or underneath the tile that you cannot detect.
- Excessive cracking in stucco, drywall, floors coverings (tile, hardwood floors), foundations
- Leaks, leaky windows wet drywall, leaks around shower pans and bathtubs
- Inadequate drainage, water pooling, water ponding, faulty French drains
- Faulty plumbing
- Toxic mold, black mold, stachybotrys, aspergillus, penicillium, or chaetomium,
- Subsidence (ground movement or sinking), soils issues
- Water intrusion resulting from poor workmanship inside the wall cavity
- Improperly installed roof
- Truss deflection and other structural issues
- Product failures
- Slab movement; floors are not level
- Roofing defects
- HVAC defects; insufficient circulation
- Lath & Plaster (stucco) defects; including poor transitions and shiners
14. What if I live in or own a condominium or townhome rather than a single-family residence?
There are certain requirements and the laws governing these types of construction defect cases (or multi-family dwelling litigation), such as the Calderon Act, which requires a number of pre-litigation procedures, frequently called the Calderon process which requires numerous requirements be met before a homeowner can file a lawsuit. Not only should a construction attorney be retained, but be careful to note that they have experience with Homeowners’ Associations and condominiums or townhouses. These are frequently complicated cases with hundred of parties and also requires an attorney, such as Tania Colderbank, with significant experience with complex civil litigation.
In fact, if you have a townhouse or condominium with construction defect—ask the construction defect attorney that you are interviewing what the Calderon Process is. If that individual does not know, keep looking. Back to top.
15. I think my house is making me sick — is that possible?
Yes. Many different toxins, including toxic mold, asbestos, and chemicals (many of which are carcinogen and known to cause cancer) that frequently arise in the construction context can make you sick. Some people will tell you that not all molds make you sick. This is true — not all molds make you sick, but molds are allergens. Even the “camps” that don’t believe in mold-related illnesses generally acknowledge that certain people are more susceptible to others. To name a few, people that are more likely to be affected are: asthmatics, diabetics, infants, and pregnant women. Typical symptoms are generally allergy-like like symptoms, such as wheezing, runny nose, irritated eyes and throat, sneezing, and headaches. Some homeowners experience more serious symptoms, including those associated with sinusitis, dizziness, nosebleeds, respiratory dysfunction, diarrhea, vomiting and impaired immune function. Mold does not make everyone sick and there are numerous factors whether or not there will be an effect on you or your family’s health. Such factors include the amount that you are exposed to mold and the duration of the exposure and your health at the time you were exposed. Back to top.
16. What should I bring to my first meeting with my lawyer?
In a construction defect case:
- Pictures, photographs, videos, and more pictures. They are truly worth a thousand words.
- Purchase Agreement or Sales Contract
- Information about the date the home was completed
- Any warranties on the residence
- Correspondence or Work Orders with the Builder
- Anything that you think will be helpful in explaining the big picture to your attorney
For other cases: call before the meeting or send an e-mail — each case is unique and may require different documentation. Back to top.