Defective construction refers to construction work that is below industry standards, does not comply with building codes or which is not of the quality required in an agreed-upon contract. Defective construction can delay a project, and can often result in legal action because of the losses caused by the sub-par work. Construction defects can appear or become known immediately or they may not reveal themselves until years after a construction project is completed.

If construction defects are not fixed, the construction may not function effectively and as intended for its purpose. Defective construction can even create the risk of damage to property or harm to people. For example, if a retaining wall collapses because it was improperly constructed, it can result in a mudslide that might damage other property and injure people in its path.

What are Some Examples of Defective Construction?

Defective construction can result from deficiencies at any phase of a construction project and in any aspect of the actual building phase. Construction defects can result from faulty design, materials, construction methods or even subsurface deficiencies. These may include:

  • Failing to complete a project or part of a project or failing to complete it on time as promised;
  • Using materials that are below the agreed-upon standard or are otherwise unfit for purpose;
  • Substituting materials specified in the plans with a different material that is sub-par;
  • Installing fixtures incorrectly, installing the wrong item or installing something that has been damaged before installation;
  • Failing to clear the construction site of hazardous material or other obstructions;
  • Completing a project in a way that violates city zoning ordinances or building codes;
  • Failing to follow instructions contained in a contract or design documents;
  • Deficiencies in any of the systems of a structure, e.g. mechanical, electrical, water protection (resulting in toxic mold), HVAC, doors, windows and glass, and finishes; or
  • Deficiencies in geological engineering of the building site.

What are Some Legal Resolutions for Defective Construction Issues?

Most construction projects involve a contract. Thus, remedies or resolutions for defective construction disputes often involve remedies for breach of contract for the parties to the contract. This generally takes the form of a damages award intended to reimburse the non-breaching party for their losses.  

There are two types of damages that may be awarded for a successful claim of breach of contract. They are:

  • Compensatory Damages: Compensatory damages, or “actual damages”, cover the loss the nonbreaching party incurred as a direct result of the breach of contract. The amount of an award is supposed to replace the loss caused by the breach.

There are two types of compensatory damages to which the nonbreaching party may be entitled:

  • General Damages: General damages cover any loss shown to be directly and necessarily incurred by the breach of contract. General damages are the most common type of damages awarded for breaches of contract.
  • Special Damages: Special damages, or “consequential damages”,  cover any loss suffered by the nonbreaching party because of special circumstances or conditions that are not commonly predictable. These are actual losses caused by the breach, but not directly or in an immediate way. To recover special damages, the nonbreaching party must prove that the breaching party knew of the special circumstances at the time the contract was made.
  • Punitive Damages: Punitive damages, or “exemplary damages”, are not usually awarded in a suit for breach of contract. They are awarded to punish or make an example of a person or company whose conduct in breaching the contract was especially egregious. The person or company liable for the breach must have acted willfully, maliciously or fraudulently. If awarded at all, they would be in addition to compensatory damages.

A contract for a large, complex construction project may specify a method for resolution of disputes between the parties, such as arbitration  instead of legal action in a court of law, although this is not common in the construction industry. A large, complex construction project can also involve subcontractors and 

The contract might also specify the type and amount of damages that the party who breaches the contract should pay for various losses incurred. Generally a court will enforce provisions in a contract regarding methods for dispute resolution and for damages in the event of breach of the contract.

Additionally, construction contracts may contain various warranties, which, if breached, could give rise to a lawsuit for breach of warranty. Warranties may apply to materials and equipment, the work, or special topics covered by specific special warranties. 

Warranties that cover “the work” done pursuant to the contract will warrant the the work::

  • will be free from defects;
  • will be free from material defects; 
  • will be performed in a good and workmanlike manner.

A construction contract with warranties will probably also include special remedies that differ from the general remedies for breach of contract. These are called “Call-back remedies” and they require a contractor to fix any defective work within a period of time, usually one year, after the work has been substantially completed. 

A call-back remedy requires the owner of the project to give the contractor notice of any defective work promptly. The effect of a call-back remedy is to obligate the contractor to cure any defect within one year if the owner has given notice within that period of time. Of course, if the owner gives notice of defects that is not timely pursuant to any warranty clause, the contractor is not obligated to cure the defect.

Another important feature of a construction contract is the obligation of the nonbreaching party to mitigate, or minimize, the amount of damages to a reasonable extent. Damages cannot be recovered for losses that could have been reasonably avoided or mostly improved after the breach occurred. This means that any award of damages will be reduced by the amount that could have been reasonably avoided if the nonbreaching party had taken reasonable steps to mitigate the damage.

Remedies for breach of contract apply only to the entities, businesses or people, who are parties to the contract. A negligence – construction defect lawsuit is another option if a defect in construction causes some kind of failure that results in injury to people and damage to other property, especially if the injury and damage involves people who are not parties to the contract. 

For example, a collapse of a bridge or pedestrian walkway over a major thoroughfare can be catastrophic, causing damage to cars, surrounding structures and the roadway. It may also cause injury and death to scores of people. Even if a construction failure due to a construction defect does not rise to the level of a catastrophe, it can necessitate a negligence-construction defects lawsuit to recover damages for the victim.

Do I Need a Lawyer for Help With Defective Construction Claims?

Claims involving construction disputes can often be complex.  If you are involved in any type of legal dispute involving a claim of defective construction, you may wish to hire a qualified real estate lawyer immediately.  Your attorney can assist you with your claim, to ensure that you obtain the appropriate guidance during trial.  Also, you may wish to hire a lawyer if you need help negotiating, drafting, or reviewing a construction contract before a project begins.

If you have been injured in a construction failure or own property that has been damaged by the failure of a structure, you want to consult an experienced personal injury lawyer who specializes in construction defects cases. An attorney will know if it is necessary to have a construction consultant analyze the facts of your case to determine if a construction defect was the cause of harm to you or your property.