Real Estate Law: Construction Defects

When you have a home custom-built for you and your family, it's typically a cause for celebration. You now have a home made especially for your family's needs that you and your loved ones can enjoy for many years. Unfortunately, however, it's always possible that a construction defect or defects could prevent you from being fully content with your new house. This article examines some of the important legal considerations involved when a home has construction flaws.

Types of Defects

The United States legal system recognizes four types of home-building defects: design defects, material defects, construction or workmanship defects, and subsurface defects. Design defects relate to the planning stage of building a home, while a material defect involves the use of poor quality materials, such as inferior concrete. Workmanship defects are those that are due to work done by the home builder that is subpar. A subsurface defect is one where the ground below the foundation is not properly prepared.

Specific defects that might fall into one of these categories include electrical problems, water leaks, poor carpentry, and an unstable foundation, among others.


When you discover a construction defect in your home, the next step is to examine your builder's warranty. Typically, builders give warranties to their clients in either the body of the main contract or as a separate document. The warranty will tell you what defects are covered and for how long. For example, it's common for builder's warranties to cover materials for one year, plumbing for two years, and structural defects for 10 years.

Builder's warranties usually have a list of exclusions that absolve the builder of responsibility for certain issues. A warranty will generally state that problems resulting from a homeowner's abuse or neglect of the house, damage caused by other people, or that result from a natural disaster are not covered.

Civil Suit

If you are not able to come to an agreement with your builder about fixing any construction defect issues, then you might need to consider filing a civil suit. Two critical considerations to keep in mind regarding civil suits against a builder are the statute of limitations and the statute of repose. 

Every state will have a statute of limitations for filing a lawsuit based on a claim of breach of contract, which is generally between three and 10 years after the defect is discovered. An exception to the statute of limitations law is called a latent defect. This is a defect you could not have reasonably discovered within the statute of limitations time period. To make things even more complex, some states have a statute of repose, which disallows claims based on latent defects.

To learn more about this complicated area of real estate law, consult with a qualified real estate attorney. For more information, contact a company like The McCormick Law Firm, LLC.