Defect Litigation

For legal purposes, there are two types of construction defects, patent defects and latent defects.  Patent defects are defects that are for the most part open and obvious, that is, they are easily observable or discoverable.  These types of defects are usually discovered during a construction process.  Latent defects are defects that are not easily observable or discoverable.  Latent defects may not be discovered for months or even years after construction.

Patent Defects

Defective construction during a project can affect the schedules and ultimately the payment of almost everyone involved in the job.  Ideally, the party responsible for the defective work will correct it quickly and without cost to anyone else involved.  Sometimes, a contractor or subcontractor performed defective work and cannot afford to fix it.  The contract between the owner and general contractor may dictate who is responsible to bear the losses incurred correcting the construction defects.  There may be a dispute over whether the real problem was the construction itself or whether there was a flaw in the design.  It may be difficult to pinpoint the exact cause of the defect.  For instance, when there is water on the bottom floor of a ten-story building, is it coming from the roof, windows, stucco joints?  The lawyers at FBSW have experience dealing with construction defect issues that arise during or near the end of construction. 

Latent Defects

Latent defects are not obvious until weeks, months, or years after construction is complete.  Often times, people make the mistake of thinking that if a problem arises after a construction warranty expires, nothing can be done.  In the case of latent defects, the defect has existed since construction was complete.  The expiration of a warranty does not necessarily prevent a claim for latent defects.  In general, a latent defect is actionable as a breach of contract claim.  The statute of limitations for breach of a construction or design contract is four years from the time the breach was discovered, but in not event more than ten years from completion of the contract.  Latent defects may have been caused by poor construction, bad materials, or faulty design.  The Board Certified Construction Specialists at FBSW can help you evaluate your potential claim or defense of a latent defect claim.