|
FREQUENTLY ASKED CONSTRUCTION DEFECT QUESTIONS
If you have a question that wasn't answered above, click here to email our office.
What is a Construction Defect?
The term construction defect is generally used in connection with defects to residential construction. It is generally seen in the context of either a strict liability action or a negligence action against a builder/developer and/or the subcontractors who performed work on your home.
A. Strict Liability
Jury Instruction: In order to recover upon the doctrine of strict liability or products liability, the Plaintiffs have the burden of proving by a preponderance of the evidence all of the facts necessary to establish that:
1. Defendant was a mass producer of homes;
2. Defendant developed and sold the home to the Plaintiff(s); Defects exist or existed in the home(s) and/or property when they left the possession of the Defendant(s);
4. The Defect or Defect(s) were the legal cause of damage; and
5. Plaintiffs' damages, and the amount thereof.
This is the actual jury instruction given by the Court in construction defect actions. "This instruction requires is that we prove that a defect exists and that the defect has caused some damage. A defect can be a roof that was installed improperly (either pursuant to the Uniform Building Code or pursuant to Manufacturer's Recommendations). The defect causes a leak and the leak causes damage to your home. The damage can be a water stain on the inside of your house or simply on the plywood of the roof. A defect can also be a window that was installed improperly. The defect causes water to leak into your home or into the wall under and/or around the window. Generally, the water will cause the interior of the wall to deteriorate and/or mold will grow inside the wall."
Top of Page
How long is the Builder Responsible for defects?
The builder told me that my one year warranty has expired.
Am I out of luck?
The general rule provides that a builder is responsible for latent or unknown defects for 10 years following the substantial completion of a particular home. Generally, the substantial completion is measured from the time the Notice of Completion is recorded by the County Recorder's office. The substantial completion date can, however, be earlier than the date of the filing of the Notice of Completion.
A latent defect is one that is unknown and/or undiscoverable. For this type of defect (the most common construction defect), you have 10 years (CCP § 337.15).
A patent defect is a defect that is visible or should be visible to the average person. For this type of defect, you have 4 years to file suit from the time that the defect became patent (CCP §338).
When you become aware of a defect, such as a leaking roof, you have 3 years from the date that you became aware of the defect to bring suit. (CCP § 337.1).
There are many actions by the builder or by operation of law that can possibly extend the above-described statutes of limitations. These include repairs by the builder or their subcontractors. If you think that you know of a defect, it is prudent to contact a lawyer to discuss the defect and the effect the defect has on your house. If you fail to bring suit within the prescribed period of time, you could lose your right to recover from the builder or anyone else who worked on the construction of your house.
Top of Page
Can my house be causing my health problems?
Yes. Our experts have opined that water intrustion into the walls and/or living areas of homes increases the presence of mold/fungus in your home. Our team of experts have performed a battery of mold tests in many homes and have come to the conclusion that some homes have unhealthy levels of elevated mold/fungus spore counts. Our medical experts have opined that the elevated mold/fungus spore counts cause some occupants to become ill when they are in their homes.
The general symptoms include increased illnesses of the respiratory system and skin rashes. Our clients will often tell us that before they moved into their current home, they were very healthy and since they have been in their defective house, they cannot seem to get rid of their colds, sinus infections, allergies, etc. Some of our clients tell us that when they are not at home they feel great or better, however, when they return home, they feel sick or have symptoms of colds, flu and/or allergies.
Often doctors do not associate illnesses with your home. As such, the cycle of illness continues until the problem with the home is resolved and/or identified.
We work with a team of experts who can assist us in diagnosing the problems with your home. Our experts assist us in determining whether elevated mold/fungus spore counts in your home are causing your health problems.
Top of Page
What if the builder is out of business or is bankrupt?
Generally, builders obtain insurance policies when they are building homes. As long as the builder had an insurance policy which covers the builder after your home was initially completed, the builder might still have insurance that will cover your case. In addition, the builder generally hires many subcontractors. The subcontractors are generally required by the builder to obtain general liability insurance. In some cases, the builder requires the subcontractor to name the builder on their insurance policies.
If there is insurance, the fact that a builder is either out of business or even bankrupt, does not prevent you from recovering from the builder's insurance company and/or the insurance of their subcontractors who worked on your house.
For a more complete understanding of the law relating to insurance coverage, please refer to the Articles Page and read the Insurance Articles.
Top of Page
Is it Normal for stucco to crack?
Some stucco cracks are normal. However, if the builder permitted the proper amount of time to pass before each layer of the stucco was applied to your home, it is likely that the number of cracks would be minimal. Stucco cracks that are long and/or numerous could be a sign of structural defects and/or a defect in the application of the stucco itself.
Top of Page
The builder of my home told me that the subcontractor is out of business and therefore cannot fix anything in my house, is that correct?
This is simply not correct. You purchased your home from the builder. It is the builder's problem that their subcontractor is out of business. If the builder does not fix your defects, you can sue the builder regardless of whether their subcontractor is in business or out of business. If you did not purchase your home from the builder, but from a private sale, the builder is still responsible for defects for up to 10 years. If the builder does not respond to your requests, it might be time to contact a lawyer.
Top of Page
I do not see water on my window sill, does this mean that my windows do not leak?
Generally, windows begin leaking inside the wall cavity. When you see water on your window sill, it generally indicates that the window itself is leaking. It has been our experience that when we remove the drywall around windows, we discover that the window was installed incorrectly. This permits water to enter the wall cavity below and around the window. This is a very common construction defect in Southern California because of a lack of coordination of the sub-trades by the builder's superintendent.
If you see staining around the window sill area, it is very likely that your windows have been leaking for some time and have caused significant damage to the framing around the window. If you see mold/fungus growing on the window sill or on the window itself, it might be an indication that your window is leaking from either the window product or the installation of the window or a combination of both of these problems.
Window repairs can be very expensive. If the window was not installed correctly. The proper way to fix this defect is to remove the window from the outside of the house. When the window is removed, stucco will be broken out around the window area to expose the window frame and the components around the window. Damaged framing and other building components will have to be removed and replaced before the window can be reinstalled correctly. Once the window is reinstalled, the stucco will need to be repaired to match the existing color of your home. Generally, the builder will not want to repair this problem and will often attempt to repair the problem from the inside of your home with calking or paint. This neglects the problem as water is still entering your home around the window frame which is buried in the stucco.
Top of Page
My carpet always seems damp or wet. What does this mean?
If your carpet seems wet, you could have moisture coming up through your slab. If you have linoleum flooring, you might see dark staining that looks like dirt that cannot be removed on your floor. This is a construction defect.
If you discuss this problem with the builder, they will generally tell you that you are watering your yard excessively. This is not always correct. Generally builders decorate their model homes with lush green landscaping. This "model" is often followed by homeowners in the same neighborhood. As such, if the builder could landscape and water the yard, you can do so as well. Do not accept this excuse from the builder.
We have found in our cases that the concrete subcontractor often uses substandard concrete mixes and/or adds excessive water to the concrete delivered from the ready-mix plan. The subcontractor adds water to the concrete mix to make it easier to pour. Thicker and drier concrete creates more work for the subcontractor and thus increases the time that must be spent on a particular slab. The addition of water causes the concrete to become porous. This is what is causing water to seep through your slab and into your house. If the correct concrete was used without the addition of water, you would likely not have wet carpeting or stained vinyl flooring.
Top of Page
I have cracks in the drywall throughout my house. What does this mean?
It could mean that the drywall was installed poorly or it could be indicative of another type of problem. It could be the result of structural defects or soils defects. These types of defects are very expensive to repair.
Top of Page
What are experts and how are they used in construction defect cases?
In order to diagnose construction defects in your home, we use a team of expert witnesses. Generally, these experts are trained in the construction field and have actually worked in the construction field for many years. It is their experience that enables them to identify problems and recommend how to fix them. We generally use a forensic architect, a soils engineer, a mechanical engineer, a structural engineer, a roofer, a civil engineer, an appraiser and a general contractor.
If we find mold present in your home, we retain another group of experts. These experts include an Industrial Hygienist and a Medical Doctor experienced with mold related illnesses.
Top of Page
What is the process for initiating a construction defect action?
First you must retain a lawyer. The lawyers of Naumann, Levine & Silldorf, LLP have been handling construction defect cases for over 10 years. We concentrate our practice to the representation of homeowners in construction defect cases.
Next, a complaint is filed and the action begins. Experts are retained and they investigate/inspect your home. The defendants, which include the builder and the subcontractors hired by the builder will also retain experts. They too, will investigate your home. If you are interested in a free inspection of your home to determine if your home suffers from construction defects, please contact our office. There is no obligation. You may either call our office (858-625-3900) or send us an e-mail (Attorneys@Silldorf-Levine.com) and we will contact you.
Once the experts have had a chance to digest their findings, a mediation will take place whereby the experts discuss their findings and determine where they agree and disagree. Meanwhile, our experts will be preparing a cost of repair.
Once the cost of repair is prepared, another mediation will take place. At this time, the parties will determine if they have enough information to settle the case. If the case is not settled at this point, depositions will begin. Generally, the developer will take the deposition of some or all of the homeowners in a case. We will take the depositions of the developer's witnesses and the subcontractors' witnesses. Most cases settle before trial begins or during trial. If the case does not settle, we will take your case to trial and a jury will decide your case based upon the evidence.
Top of Page
If I get a settlement, how is it divided?
Once a settlement is obtained, the funds are apportioned among all of the homeowners involved in the lawsuit based upon the damages to their individual houses. Attorneys fees and costs are deducted from the settlement proceeds and the balance is distributed to our clients in the form of a check. The case is then completed.
Top of Page
Will I know what has to be repaired?
Yes. You will be given a list of defects found in your home. You will be able to use this list to determine what needs to be repaired.
Top of Page
If I do not recover any money from the defendants will I have to pay you (the attorney) anything?
No. If you enter into a contingency fee agreement with our firm, you will not be responsible to us for any fees or costs we advance on your case if we are unsuccessful in obtaining a recovery.
Top of Page
Homeowner Links
San Diego County Recorder's Office
http://www.sdcounty.ca.gov/arcc/arcc_home.html
San Diego County Superior Court
http://www.sdcourt.ca.gov/portal/page?_pageid=53,1&_dad=portal&_schema=PORTAL
Orange County Recorder's Office
http://www.oc.ca.gov/
|
