Construction Defects: What Pool Members Need to Know

Construction defects can result from deficiencies in how something is designed, built, operated or maintained. While some defects result in damages that are immediately known, such as a burst water pipe, other defects– such as a slowly shifting foundation from soil movement –take time to appear.

Almost any condition that reduces the value of a building can be legally recognized as a defect in design or workmanship, or a defect related to land movement. While the cause of a deficiency can be difficult to determine, the general appearance of a deficiency may point to the probable reason for the failure.

Structural failures and earth movement conditions can be catastrophic in nature and present both personal injury and substantial property damage exposure. Landslide and settlement conditions may result in the collapse of buildings; cracks in slabs, walls, foundations, and ceilings; disturbance of public or private utilities; and sometimes a complete undermining of the structures.

Four Types of Construction Defects

Over time, the legal process to address construction defect claims has settled on four general categories of deficiencies:

  1. Design Deficiencies

Architects and engineers may design buildings and systems that do not work as intended or as expected by an owner. For example, a roof design that allows water intrusion could be attributed to a design deficiency.

  1. Material Deficiencies

Building materials may be defective or damaged, leading to failure despite proper design and construction. Window frames that are installed despite being bent during transit may not allow for proper installation, leading to water intrusion. Or, inferior or imported products may not function or last as long as intended.

  1. Construction Deficiencies

Poor quality workmanship can result in a range of damages, including plumbing leaks that potentially promote mold growth or damage finishes, electrical or mechanical problems, and cracks in foundations or walls.

  1. Operation and Maintenance

Once construction is complete and a project is turned over to its owner, it is vital that the construction be maintained effectively. Exterior sealants may only last five years depending on the outside environment, and without proper maintenance, failed sealants can potentially cause water intrusion issues. Interior environments can be changed when an owner is not operating the HVAC system as designed, potentially leading to frozen pipes or uncomfortable spaces.

What Does a Builder’s Warranty Cover?

Every warranty is different in what is covered and what is not, how long the warranty lasts, and what the builder will do to fix construction problems. Many require you to arbitrate and give up your right to sue in court. Read the fine print because it may state that you also may end up paying the developer’s arbitration costs if you lose. Do not be duped into believing they will repair defects to your satisfaction. The warranty is more a marketing tool than any real effort to address serious problems in your facility. Most developers’ concept of what constitutes a construction defect falls far short of what most building standards and state statutes consider a construction defect.

Proving that a Defect Exists

In most cases, you will need to hire the services of an independent expert who has the necessary training, education and experience to give testimony in court as to the cause of a defect. For example, if your roof leaks, a waterproofing expert who has designed effective roofs, evaluated other defective roof systems and knows how roofs should be built would be in a good position to testify.

A Growing Problem

As the pace of construction continues to increase in the post-recession recovery, more new construction projects create a larger pool of potential construction defects. It also puts pressure on contractors to find adequate numbers of employees with the proper skills and capabilities.

A national survey by the Associated General Contractors of America (AGCA) recently found that 74 percent of firms are having trouble finding qualified trade workers, including carpenters, equipment operators and laborers. In addition, 53 percent report that professional positions –project supervisors, estimators and engineers–are also difficult to fill.

As construction work increases, it becomes even more difficult to find experienced employees. Less-experienced workers are then used to support this increased demand, so it’s reasonable to conclude that construction defect claims could potentially grow to higher levels in coming years.

Assume Problems Will Develop

Assume you’re going to have problems and put in writing how to resolve issues before they occur.

Use an Experienced Construction Lawyer

Learn your rights under Colorado Contractors Laws and use an experienced construction lawyer to review final documents to protect your district’s interests.

Construction defects have been a huge problem all across the country, so you need to make sure your contracts have the necessary protection built in to minimize the legal costs at completion and through the warranty period in order to protect the district’s assets and ensure uninterrupted operations.

What is a Construction Defect?

Defects in design, workmanship and materials include:

  • Water seepage through roofs, windows, and sliding glass doors
  • Siding and stucco deficiencies
  • Slab leaks or cracks
  • Faulty drainage
  • Improper landscaping and irrigation
  • Improper materials
  • Structural failure or collapse
  • Defective mechanical and plumbing
  • Faulty electrical wiring
  • Inadequate environmental controls
  • Improper security measures and devices
  • Insufficient insulation and poor sound protection
  • Inadequate firewall protection

Landslide and earth settlement problems include:

  • Expansive soils
  • Underground water or streams
  • Landslides
  • Settlement
  • Improper compaction
  • Inadequate grading
  • Drainage issues
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