- The Legal Duties of Your Builder?
- When the Builder Breaches Those Duties
- The Damages You Can Recover
- Time Limits for Legal Action (Statute of Limitation and Statute of Repose)
- Breach of Express Warranty or Breach of Contract
- Breach of Implied Warranty
- Building Codes
- Noise / Proximity to Military Airports
- Arizona Awards
In Arizona claims against the builder frequently include breach of contract, breach of express warranty, and breach of implied warranties. Arizona statutes require that the builder be given notice of the defects and an opportunity to inspect and either repair or offer damages for settlement prior to the filing of a lawsuit. Note that these statutes do not apply to arbitration.
Some purchase contracts in Arizona contain a binding arbitration agreement which attempts to limit a property owners ability to file a construction defect claim in a court of law by requiring the dispute to be settled by an arbitrator or a panel of arbitrators. If arbitration is used to resolve the matter, the decision that is made is as binding as one made by a court of law.
Arizona law states that your builder or developer has a basic duty to construct a building in a good and workmanlike manner. This includes following the construction documents, including building plans, applicable building codes, the manufacturers installation instructions for pre-manufactured items (such as windows, air conditioning systems, roofing, etc.), and industry standards. The Arizona Supreme Court has said that the purpose of the implied warranty is to "protect innocent purchasers and hold builders accountable for their work". When construction has been completed, a certificate of occupancy should be presented for a well constructed building that is free of defects. Unfortunately, this is not always the case.
If your developer or builder does not fully perform the duties discussed above, the builder or developer may have failed to meet the legal obligations to you and could be in breach of a legal duty. When that happens, Arizona allows you to file a lawsuit against your builder or developer.
By filing a lawsuit against the builder or developer, you have completed the first step towards recovering money to compensate you for your damages or loss. Arizona courts recognize that a property owner may recover money for the following types of damages:
- The reasonable cost to repair the defects and any property damage the defect might have caused
- The loss of use of your property during the repair process
- The loss in property value resulting from the negative perceptions associated with property that has had construction defects, even after the defects are repaired
- The cost of hiring experts to investigate the defects affecting your property
- The cost of hiring legal counsel to prosecute your construction defect claim
Often a builder or developer claims that the structural elements of a building have a warranty of one or two years. The Arizona law specifically provides a longer period of time for a property owner to identify any construction defects and expects the builder to make appropriate repairs. If the developer or builder does not satisfy a request to make repairs, and as long as the discovery of the defect and request is made within specified time limits, a lawsuit may be filed. These specified time limits are known as Statutes of Limitation and Repose. These laws can be very difficult to understand and interpret, and a law firm whose practice focuses on construction defect litigation could assist in explaining the rights of a property owner and the timing aspects of filing a lawsuit.
A breach of contract is the violation in the performance of or a failure to perform an obligation created by a promise, duty, or law. In construction defect cases, the breach refers to the failure of the property owner to receive the benefit of a defect-free building. The expected result of a breach of contract claim in a construction defect law suit is the recovery of the cost of repairs.
The implied warranties of workmanship and habitability have long been recognized in Arizona. The rationale underlying the doctrine of implied warranties is based on the recognition that builders are skilled professionals, that todays construction practices are complex and regulated by many governmental codes, and that property owners are generally not experts in the various structural components of designing and constructing a building.
The implied warranty of workmanship requires buildings to be constructed in a reasonably skillful and workmanlike manner, so that the work is equivalent with that done by a reasonable worker of average skill and intelligence. The implied warranty of habitability requires that the building structure be reasonably suited for its intended use, and not simply occupied. The proof of a defect due to improper construction, design or preparation is sufficient to establish the liability of the builder or developer. This liability exists whether the developer sells the property directly to the current property owner or the current owner has purchased the property from a prior owner which is not the developer. Again, the expected result of damages due to breach of implied warranties is the cost of repairs.
The Uniform Building Code and other building codes dictate how a builder or developer constructs a building. The purpose of the UBC is to provide minimum standards to safeguard life or limb, health, property and public welfare. Modifications of the UBC are permitted only when unusual, unreasonable, and/or impractical physical difficulties arise in the implementation of the literal provisions of the code. Municipalities engage building inspectors whose job description is to see that certain standards of safety and structural quality are being met in buildings. The municipalities building inspectors do not perform quality control for contractors, nor do they assume responsibility for defects because permits have been issued and/or certificates of occupancy have been provided. Inspectors inspect or approve construction in good faith and without malice. The building code does not relieve or lessen the responsibility of the builder or developer for damages from defects in construction even though building inspectors issue certificates of occupancy. Thus, the builder or developer should be a property owners first line of defense in overseeing the proper construction of buildings and protecting the property value.
Within the state of Arizona, builders and developers whose projects are deemed to be territory in the vicinity of a military airport are obligated to comply with state-mandated, local sound-attenuation ordinances that require the builder / developer to incorporate within the design and construction of residential buildings certain noise level reduction features. These features are designed to assure that a maximum interior noise level of 45 decibels will be attained within the residence. The required features necessarily include, among others, a minimum of R-18 exterior wall assembly, dual pane windows, and a minimum of R-30 roof and ceiling assembly. Alternatively, if the builder / developer should elect not to comply with the state- mandated, municipal / county ordinances, the builder / developer may retain a registered architect or engineer to certify that a maximum interior noise level of 45 decibels had been attained at the time of final construction.
The failure to design and install a proper wall assembly that manifests a thermal resistance rating capacity of R-18 or better (some cities like Surprise have more stringent standards) is the most frequently observed acoustical problem. The home purchaser whose wall assembly falls below the R-18 standard has not received what the homeowner paid for and is entitled by law to receive.
Certain municipalities (or portions thereof) that are in the vicinity of Luke Air Force Base are Surprise, Goodyear, El Mirage, Buckeye, Litchfield Park, Avondale and Youngtown. (Note also that there are particular unincorporated sections of Maricopa County that also fall within the statutorily designated boundaries of deemed to be in the vicinity of Luke AFB.) Certain portions of the City of Tucson are within the vicinity of Davis-Monthan Air Force Base. New residences constructed in either of these jurisdictions are subject to the noise attenuation standards as promulgated both by specific municipal (or county) ordinances and by Arizona state statutes (A.R.S. Sections 28-8461(20 (a) and 20 (b)) (defining precisely the boundaries of territory in the vicinity of Luke AFB and Davis-Monthan AFB, respectively) and Section 28-8482 (B)(imposing upon state of Arizona political subdivisions having territory in the vicinity of a military airport the obligation to adopt building code ordinances reflecting, at a minimum, the state-imposed acoustical standards for new residential construction)).