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Frequently Asked Questions
Kasdan Simonds Riley & Vaughan has successfully represented owners of homes, condos, apartment buildings, commercial and municipal property and homeowner associations. Below are questions that property owners have asked. If you have a question that is not answered here, please contact us so we can better assist you.
Legally, when does a construction defect exist?
A construction defect exists when the components of a building (roofs, windows, siding, electric, plumbing, etc.) and/or the building's surrounding infrastructure (sidewalks, walls, parking lots, etc.) fail to perform their intended function or do not conform to applicable building codes. The primary source of these codes is the Uniform Building Code.
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What types of construction defect problems are most common in California?
Some of the most common defects are improperly installed windows, doors and roofs, missing or improperly installed firestops and shear walls, inadequate insulation, improperly installed electrical and plumbing systems, and inadequately fastened roofing members. Another major problem results from improper drainage, especially in areas where housing is built on hillsides. This often results in subsidence, that is, the slippage of ground. In most cases, subsidence leads to cracking of walls and hardscape such as patios and pool decks, doors that don't open and close properly, and uneven floors. In the worst cases, subsidence can extensively damage and even destroy homes.
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What types of construction defect problems are most common in Arizona?
Some of the most common defects are improperly installed windows, doors and roofs, missing or improperly installed firestops and shear walls, inadequate insulation, improperly installed electrical and plumbing systems, and inadequately fastened roofing members. Another major problem results from improper drainage, especially in areas where housing is built on hillsides. This often results in subsidence, that is, the slippage of ground. In most cases, subsidence leads to cracking of walls and hardscape such as patios and pool decks, doors that don’t open and close properly, and uneven floors. In the worst cases, subsidence can extensively damage and even destroy homes.
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If everything looks fine, can there still be construction defects?
Yes. Though construction defects that result in lawsuits are usually major problems that are readily apparent and destructive, many homes and buildings have latent defects that aren't revealed until the investigative process begins.
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Does damage to common areas qualify as a construction defect?
Yes. If the cracked concrete and asphalt are part of the overall project, such as a building's foundation, parking areas, garage floors, streets, sidewalks, etc., then it is considered a construction defect. This also applies to property walls, as well as swimming pool decks and other recreational facilities if they are commonly owned and supported by the homeowners through their association. Cracking or deterioration of this hardscape usually is the result of ground movement. Common area landscaping can become a serious defect if not planned correctly.
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What are the most common indicators of construction defects?
Staining from water intrusion is one of the most common, followed by cracking of walls and standing water on porches or other flat areas adjacent to the home. Buckled siding, cracked stucco, and water leakage from improperly installed roofing shingles and roofing systems can also be a cause. Particularly worrisome is the presence of a white powder-like substance on concrete, potentially representing chemical attack from the soil. Other indicators that a home has water intrusion are the presence of rotting and/or moldy wood, wall boards, carpeting, and drapes, as well as warped flooring such as linoleum.
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Is the presence of mold/fungi a construction defects?
Fungal growth can often be linked to construction defects, especially those defects that permit water intrusion into the home. When this has occurred, the mold must be completely inventoried and removed pursuant to hygienic guidelines. All sources of leaks must be located and fixed, and sometimes building components must be replaced. The claim against the builder must include a demand for funds sufficient for all of this, and any relocation needs. If the mold has caused adverse physiological reactions, homeowners and their children should be evaluated by a specialist. If appropriate a personal injury claim is filed.
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Is noise considered a construction defects?
Yes, especially in a condominium or apartment building where units share common walls. Allowable noise levels are set by building codes, and if the levels go beyond limits set by the codes then the noise can be considered a defect. Noise levels are usually controlled by the amount of insulation between common walls, so if the noise goes beyond the allowable levels, it probably means there is inadequate and therefore defective insulation.
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Is insulation required for energy conservation?
Absolutely. Both state and local building codes are concerned with energy conservation and, among other things, require certain levels of insulation in both ceilings and walls to retard loss of heated or cooled air. If you don't have insulation in your attic, or if you do but it is less than 6 inches in depth, then it probably does not meet code requirements.
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What about built-in appliances?
Appliances are not normally considered part of the actual building structure and thus are not covered by building codes, but are covered by the manufacturer's warranty. If there are common problems with an appliance in homes in a development, then a lawsuit may be necessary if the builder and/or manufacturer are unresponsive.
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How about leaking lawn sprinklers?
If the sprinklers are part of the new-home package that was purchased, or part of the common areas controlled by the homeowners association, then they are required to be installed and to be operating properly. If a builder improperly installs the sprinklers or other components of the irrigation system, including drainage, this constitutes a defect that the builder must repair. A leaking irrigation system and poor drainage can lead to major problems if not corrected, such as soil erosion and/or damage to structures.
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There is more and more being reported in the news media about sulfate damage to homes. What is it, and what does it do?
Sulfate is a naturally occurring salt compound that is commonly found throughout coastal areas. When the soil becomes wet from irrigation or heavy rainfall, the sulfate dissolves in the water and seeps into improperly mixed concrete and literally eats away the paste that holds the concrete together. Once the deterioration starts, it can't be stopped.
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If you have construction defect problems, what should be your first step?
Clearly and accurately document the specific problems, including a written description of the defect and its specific location, and take pictures if you can. Talk to your neighbors and association manager (if you have one) to find out if anyone else is experiencing the same problem. If you live in a condominium or some other type of a project where a homeowners association is responsible for the maintenance and upkeep of the buildings, your association manager or Board of Directors may want to meet with the builder of your project or one of the builder's customer service representatives. Many times a builder will cooperate and fix the problems, especially if your home or project is still covered by a warranty. Even then, an attorney should be consulted to make sure the time spent in negotiations and resulting efforts to repair do not take you beyond the deadline for filing suit if necessary.
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What if the builder doesn't cooperate?
We recommend you contact a lawyer to discuss the legal rights and remedies you may have. Sometimes just the idea that you, and perhaps your neighbors or homeowners association might bring a lawsuit, is enough to spur the builder to fix the problems. If not, bringing legal action may be the only way to resolve the problems, especially if they are so substantial that the builder cannot or will not financially solve them by himself. Once litigation is initiated, the builder, subcontractors and insurance companies are usually involved. The information given above is general in nature and is not intended as legal advice. The matters discussed are subject to great complexity and subtle gradations of application depending on their specific factual context. There is no substitute for sound legal advice from trusted legal counsel in light of specific facts.
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