Understanding Your Rights When You Discover a Construction Defect

When you purchase a property or have one built for you, there’s always the risk that a construction defect will eventually come to light. Your attorney may recommend that you negotiate an inspection provision into the contract and have the builder repair any observable defects before closing. While this can help, not all defects are immediately detectable.

Common examples include:

  • Leaky roofs, doors, or windows
  • Frequent and excessive drywall or stucco cracking
  • Moisture issues due to improper drainage
  • Doors or windows that won’t open or shut properly
  • Cracks and fractures in the floor
  • Mechanical or electrical problems

While some defects are mostly cosmetic, others affect your ability to use the property and can even be dangerous. But no matter what the severity of the defect may be, it is important to understand what your rights are. They include bringing a legal claim against the developer, general contractor, or subcontractor for damages.

Breach of Contract

You can sue the builder or developer for breach of any obligation listed in the contract you signed with them. To prevail, you must prove that the other party breached its obligations and you suffered damages as a result. How much you may recover in damages will depend on the project scope, the nature and extent of the construction defect, and the extent to which it interferes with your use of the property or your ability to run your business.

Breach of Warranty

In New York, there is a statutory warranty for new construction called the Housing Merchant Implied Warranty. Although the purchase documentation between you and the developer will typically set forth warranties regarding the condition of the building, this warranty is “implied,” meaning that it doesn’t need to be written into the contract to be valid for single-family homes or units in multi-residential buildings of five stories or less.

Courts have held that those who build or sell newly constructed buildings should be held to what is implied, which is that the finished building was designed and built using a reasonable degree of workmanship. Construction defects can be presented as a breach of implied warranty.

Strict Liability

The implied warranty of habitability places strict liability on the general contractor of a construction project. This means that you don’t have to prove that the developer or general contractor was negligent in the construction of the property, but you do have to prove that:

  • The defendant was involved in the mass production of buildings
  • A defect exists in your building
  • The defect caused damages
  • The defendant created or caused the defect

Fraud and Negligent Misrepresentation

Fraud exists if the developer or contractor deliberately misrepresented the quality of the construction and had no intention of following the design plans and specifications. Negligent misrepresentation occurs if they assert something as fact but lacked a reasonable basis for believing it to be true.

What Can You Do?

If the developer or contractor is willing to negotiate, you and your attorney may be able to reach a reasonable settlement with them. If necessary, negotiations may be carried out with assistance from a trained mediator who will review all documentation, photos, and inspection reports and work with both sides to reach a fair and acceptable resolution. If they refuse to negotiate or all attempts to resolve the dispute out of court do not work, you have the right to file a lawsuit.

If you are dealing with a construction defect in your residential or commercial property, an experienced construction law attorney can make a positive difference in the outcome. At Rosen Law LLC, we have a solid reputation in the area of construction litigation and will work to solve your claim as efficiently as possible, either via an alternative dispute resolution method or in court. For more information, please call (516) 437-3400.

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Rosen Law LLC

Our attorneys, admitted to practice law in New York, Florida, New Jersey, Connecticut, Pennsylvania, and Georgia, practice within a wide range of legal areas including business and real estate litigation, Fair Labor Standards Act litigation, complex real estate transactions, preparation of condominium offering plans, business sale and purchase transactions, construction law and litigation, New York City tax abatements, estate planning, probate and probate litigation and much more.

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