Construction Worker_resized 10Jun14   What Are Construction Defects?

Almost any condition that diminishes the value of a home, condominium, or common area can be legally recognized as a construction defect. The flaw can be in the design of the property itself or can result from negligent behavior on the part of the builders or contractors. It can also occur if the property was built in a location where the environment is not suitable for construction.

Construction defects often occur because contractors attempt to take shortcuts in either the design or construction of the building to save time and lower costs. These shortcuts may have detrimental effects as some defects may lead to dangerous or hazardous conditions for the property owners.

Laws Governing Construction Defects

California construction defects are covered by two primary statutes. The first, the Right to Repair Act (Cal. Civil Code, §§895 –945.5), is commonly referred to by its legislative bill, SB 800. The Right to Repair Act defines what constitutes a construction defect in California. It lays out “functionality standards,” the violation of which are considered a cause of action. The Right to Repair Act applies to all original construction dated after January 1, 2003.

The second statute,  §§1350-1375.1 of the California Code,  is commonly referred to as the Davis Stirling Common Interest Development Act or the “Calderon Procedures.” It pertains to petitioners who are part of common interest developments such as apartment complexes and homeowner’s associations. These procedures require a pre-filing dispute-resolution process between homeowners associations and common-interest development builders.

Types of Defects

Defects in Design, Workmanship and Materials

These defects occur if the layout or blueprint of the property is bad, the quality of the work is poor, or if the materials used are subpar or not ideal for the structure to maintain its support and stability. Defects can include: water seepage through roofs, windows and sliding glass doors; siding and stucco deficiencies; slab leaks or cracks; faulty drainage; improper landscaping and irrigation; termite infestation; improper materials; structural failure or collapse; defective mechanical and plumbing; faulty electrical wiring; inadequate environmental controls; improper security measures and devices; insufficient insulation and poor sound protection; and inadequate firewall protection.

Structural Failures and Improperly Laid Foundations

If the foundation or structure of the building is not properly sound and reinforced, any changes to the physical environment can have devastating effects to the building. It can result in the partial destruction of or complete collapse of the property.

Legal Theories and Statute of Limitations

There are several legal theories on which a property owner may initiate a construction defect case. Each theory may have a different legal claim and a different statute of limitation. A statute of limitation is a particular timeframe in which the claim must be brought in order to get legal recourse.

Breach of Contract

If an owner hires a contractor to perform certain construction work on a property and the contractor does not do the work according to the specific requirements of the written contract, the owner can file suit for breach of contract. The suit must be filed in Court within four (4) years of the date the contract was breached. If it is an oral contract, the suit must be filed with the Court within two (2) years of the date the agreement was breached.

Negligent Construction

If an owner believes the construction on the property is not done at the level of professional standards and quality prevalent in the geographic area where construction site is located, any person who is damaged by that poor construction can sue for negligent construction. The suit for damages must be brought within three (3) years of the date those damages occurred or were discovered.

Negligence suits cannot be brought more than four (4) years after the completion of the construction if the defects are “patent.” Patent defects are defects that are obvious to a reasonable person.

If the defect is “latent” (not obvious to a reasonable person), all negligence suits must be filed with the Court within ten (10) years of when the construction project is completed. When the damages were suffered or when the defect was discovered are not factors in determining the statute of limitations for negligence claims based on latent defects.

Fraud/Concealment/Misrepresentation/Failure to Disclose

Suits based on fraud, concealment, misrepresentation or failure to disclose must be brought within three (3) years from when the fraud or non-disclosure was discovered or should have been discovered according to California Code of Civil Procedure Section 338. The owner must prove the builder or contractor lied about or withheld information from the owner that breached his or her duty within the terms of the contract.


If you have any construction-related questions, do not hesitate to contact one of our experienced attorneys at Garcia & Gurney A Law Corporation.

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