Construction Defect Lawsuits: Fact or Fiction?
Here we go again!
Another law firm has decided to mass-mail new construction homeowners in the Valencia area regarding potential construction defects.
What does this mean? Is your builder guilty of major widespread construction defects that need to be addressed in a class-action lawsuit?
If you’ll look closely at these "Important Homeowner Newsletters" recently mailed by an Irvine law firm, you’ll find that both the envelope and the letter have the word "advertisement" on them. Although they make every effort to make these letters look very important and official, in reality they are simply soliciting your business.
We’ve seen these before... every time a new development passes its one-year anniversary the smash-and-bash attorneys start looking for people who are willing to play their game.
The letter states that "they have received reports of construction defects such as stucco cracking, slab cracking, moisture transmission through foundations and flooring causing damage to flooring material and efflorescence reflecting potential chemical attack and premature deterioration of the concrete". Are these really construction defects, or are they the result of the normal settling of the home?
According to Jeff Pope of JPI Inspection Service, "New home builders, in most cases, deliver quality homes to their customers. However, building the perfect home simply isn't possible." Jeff states that "hairline cracks in slabs, sidewalks and stucco siding are a normal result of the settling process in new home construction."
In California, lawsuits over building defects scared off insurers and so decimated the multifamily housing construction industry the state was forced to pass a new law effective in 2003 that regulates how defect claims must proceed.
The Governor recently signed Senate Bill 800 which changes the law governing construction defects and provides:
• That any action seeking recovery of damages for residential construction, defects shall be governed by new detailed standards.
• For a ten-year statute of limitations , with certain exceptions.
• That builders shall provide a one-year, or more, express warranty covering certain building components.
• For mandatory procedures prior to the filing of a construction defect lawsuit including the builder's right to attempt a repair, inspections and exchanges of documentation and mediation, pursuant to various time frames set by the bill.
• Statutory affirmative defenses for:
a. unforeseen acts of nature,
b. a homeowner's failure to minimize or prevent damages,
c. a homeowner's, failure to maintain,
d. defects not caused by the builders,
e. defects barred by the statute of limitations,
f. defects subject to a valid release, and
g. the extent that a builder's repair was successful in correcting the defect
Remember that if you’re involved in a construction defect lawsuit and decide to sell your home, you will need to disclose all of the details of the lawsuit to your potential buyer. Quite often lenders are hesitant to lend on properties that have pending construction defect lawsuits, so you may have a harder time selling your home.
Of course your first action should be to contact your builder’s customer service department if you think that your home has a defect that they should correct. Mistakes do happen in mass-produced tract homes, and often a mistake (or defect) will show up in several homes within a development, since it’s likely that one subcontractor did the same thing in several homes. If the customer service rep assigned to your development doesn’t give you satisfactory answers, then ask to talk with a supervisor to see if you can resolve any outstanding items. It’s always better to attempt to resolve these issues directly with the builder rather than getting a third party involved.
You’ll find that often the builder or subcontractor will go beyond what is required for the initial complaint. In my development, some homes were a bit shy of the required level of attic insulation initially, and the subcontractor voluntarily increased the insulation level while they were out here to correct the original shortage. All I had to do was ask for the extra insulation, and they elected to throw it in free of charge to compensate for their initial mistake.
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Linda Slocum
HoneyStartPacking.com
Santa Clarita Real Estate
posted by Linda Slocum @ 5:02 PM
2 comments
2 Comments:
Truly a provocative propaganda post. Who could quarrel with your suggestion that the home owner contact his or her builder before filing a lawsuit? Or with your point that most builders are reputable.
On the other hand, if you have cracks in your home that your instincts told you were far larger than should be there in so new a house, would you take your builder's word or the word of an inspector hand picked and paid for by your builder that the cracks are simply "normal settlement?" Or would you insist on an independent investigation by someone who is watching out only for your interest.
I agree that some attorneys pursue claims that should not be pursued. But are you saying the law firm you mentioned is not speaking the truth in its mail out advertisement? If it's not, there's a remedy for that. I urge you to file a complaint with the appropriate ethics board.
Are the alleged defects subject to the new law you mentioned? You list those defenses like they are something new. All of the defenses listed in your post were defenses below the law passed other than the shortened limitations period. Ironically, the shortened time limit makes it even more imperative that the homeowner not sit on his or her rights. If the homeowner suspects a problem, the homeowner needs to consult counsel and obtain the opinion of an independent expert promptly before the time runs on securing relief.
Most home builders do a good job and promptly make appropriate repairs when they do make a mistake. But home owners don't have the expertise to determine whether their builder is one of the good buliders or one of the bad ones. And there are enough bad ones to keep every attorney involved in construction defect litigation very busy pursuing meritorious claims.
I strongly recommend that all homeowners get an inspection from an independent licensed inspector prior to the 1-year anniversary of their home purchase (or whenever their builder's warranty expires). A qualified inspector should find most items that should be brought to the builder's attention, and the report will aid the homeowner in communicating with the builder to correct those issues.
I also recommend purchasing a new home buyers warranty for years 2-5 through any reputable home warranty company. These are relatively inexpensive and cover much of the systems and appliances in the home.
In my opinion, legal action should NEVER be the first line of defense in the case where construction defects may be present. However, if the builder refuses to address any true defects (not just normal settling issues), then of course legal action may be the correct action.
Many homeowners jump on these invitations to join class action lawsuits in the hopes of getting a "bonus" from the builder rather than for real construction defect issues. And, of course, that is what the attorneys in question were looking for when they sent out their "advertisement" to the community.
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