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Residential Construction Defect Law: A Primer (Part 3 of 4)

Last week, in part one of this primer on Residential Construction Defect Law, I discussed the topic generally.  Yesterday's part two discussed types of construction defects.  Today's topic:

Legal Theories in Construction Defect Law & Litigation

The typical construction defect cases centers around a builder's failure to construct the home in a workmanlike and non-negligent manner. These cases often implicate the work of various subcontractors, suppliers, architects, and engineers that were involved in building the residential structure. The goal is to bring all parties to the table and require the party who is responsible for the defect to pay for fixing the situation. The legal claims typically include negligence, breach of contract or warranty, and/or fraud or negligent misrepresentation.


The law imposes the obligation upon the developer/general contractor/ subcontractor to exercise the reasonable degree of care, skill and knowledge that is ordinarily employed by other similar building professionals. The duty of care is extended to all who may foreseeably be injured by the construction defect, including subsequent purchasers. Developers and general contractors are responsible for the negligence of their subcontractors.

Breach of Contract

Homeowners often sue the builder/developer under theories grounded in a breach of any obligation set forth in the design/build contract, purchase and sale agreement, and/or escrow instructions. Typically, this is something that goes beyond a failure of the builder to build the project in accordance with the plans and specifications.

Breach of Warranty

Similar to breach of contract theories, the purchase documentation between the developer and the homeowner often sets forth warranties regarding the condition of the property. State statute can also require a similar warranty obligation. If there is an issue as to breach of an express warranty, the same is actionable.

Courts have held that builders and sellers of new construction should be held to ensure the residence was designed and constructed in a reasonable and workmanlike manner. Often, builders may have buyers waive and/or disclaim implied warranties. This waivers/disclaimers are generally difficult to enforce and are often times not upheld by the court.

Fraud and Negligent Misrepresentation

Fraud is alleged on the grounds that the developer intentionally misrepresented the quality of construction in false statements or advertisements and/or recklessly disregarded the truth or falsity of those representations.

part four >>

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