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Construction defect liability: negligence

Construction defect are two awful words that no homeowner or developer ever wants to hear. Construction defect means that there was a fundamental flaw during the construction of the building which resulted in a current defect. The defect could be minor, meaning it is easily replaced such as better windows for more insulation, or it could be serious, like improper soil grading that undermines the foundation of the building. In short, construction defect cases are a death knell for many developers, investors, and homeowners.

There are numerous grounds in which you could sue for a construction defect. The most obvious are in a legal theory called "negligence." Negligence is composed of four elements: that someone (1) owed you a duty, they (2) breached that duty, that breached (3) caused you (4) harm. The law imposes on developers and contractors to construct buildings with a reasonable degree of care, skills, and knowledge that is normally employed by people in the construction industry. Additionally, the law extends that duty to anyone who could foreseeably be injured by the defect, including the initial purchaser and all subsequent buyers. Finally, general contractors and developers are liable for the negligence of any subcontractor they hire.

In short, this means that if there is a defect on your property, everyone connected to the construction of your home could be liable. The law automatically imposes the duty, therefore, the focus of your suit will be on the breach and the nature of the harm you suffered. You still need to prove that the developer failed to exercise reasonable care and skill. Therefore, you cannot hold the developer liable for things that were outside of their knowledge or skill base, i.e. you cannot sue if your house collapses due to an unforeseeable natural event.

If you are involved in negotiations over a construction defect, you should consult with a lawyer. You may not need to litigate your case, but it is important that you prepare for the possibility. Construction defect cases are notoriously complicated and often turn on the knowledge and testimony of expert witnesses. A lawyer can help lay the groundwork to succeed at litigation, to ensure that if you are unable to resolve the dispute amicably, you are ready to pursue compensation in the courts.

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