As a lawyer that has spent his career defending against construction defect claims, one of the most common questions I get when counseling clients regarding risk management is: “What are the most commonly claimed issues in construction defect litigation?” Until very recently, my answer to this question has been based on my own experience and knowledge on the subject, and only vaguely reliant on empirical data.
[Related: What a construction defect ‘win’ looks like for a builder]
Recently, two engineers, Elizabeth Brogan and William McConnell, along with Caroline Clevenger, an associate professor at the University of Colorado, Denver, wrote a paper entitled “Emerging Patterns in Construction Defect Litigation: A Survey of Construction Cases.” The authors analyzed 41 multifamily construction defect cases litigated in 2015, 2016 and 2017, mostly in the Denver metro area.
The authors classified the 55 most prevalent alleged defects into the following categories: structural issues; civil issues; building envelope issues; roof issues; deck, balcony and porch issues; fire protection issues; and miscellaneous issues. The authors then identified the 10 most commonly claimed construction defects, which occurred in over half of all of the cases analyzed. These defects included:
- Inadequate grade adjacent to foundation (68%)
- Inadequate slope grading (improper management of concentrated flows) (61%)
- Flatwork or structures inhibiting drainage (59%)
Building Envelope Issues
- Non-compliant clearance between siding, stone veneer or stucco and hard surfaces or grade (73%)
- Non-compliant weep mechanism in stone or stucco at horizontal terminations (71%)
- Non-compliant flashing (base, head, sill, clearance, blocked or improperly sloped) (68%)
- Improper water table construction (rowlock, stone, stucco, EIFS, precast or other) (71%)
- Non-compliant moisture management integration (weather resistive barrier, self-adhered membrane or other) (71%)
- Non-compliant isolation to penetration and dissimilar materials (76%)
- Non-compliant roof flashing (diverter, rake, head, chimney, air handling units, jacks, etc.) (54%)
The authors further investigated each of these issues to describe specifically what the homeowners associations claimed to be non-compliant; the potential damage, issue or concern with the non-compliance; the code allegedly violated; and the repair proposed by the homeowners associations’ experts. Needless to say, this paper is full of valuable information for any home builder, developer, contractor, architect or subcontractor who is interested in improving its risk management program.
[Related: The next evolution in Colorado construction defect litigation?]
To the extent that you are already working with a third-party QA/QC provider during the design and construction phase of your projects, or are considering doing so, I think it would make sense to review this with those inspecting your projects to ensure that there is a high correlation between the items for which they are inspecting and those things that appear with the most frequency in construction defect litigation.
If you would like to obtain a copy of “Emerging Patterns in Construction Defect Litigation: A Survey of Construction Cases,” please feel free to reach out to me at [email protected] or Bill McConnell at [email protected].
To a large extent, this list of claims follow the experts’ pet peeves as well as what homeowners can see. For example some of the authors’ listed defects are not defects at all (“Non-compliant…). I would love to see an attorney held to the same scrutiny of perfection, where they are held professionally negligent for misspelling a word or other minuscule mishap. Builders must seek out defense experts who understand “substantial compliance” and be able to articulate these points at trial.
Builders should be advised to follow the building codes and use a quality QA company who can help them build a robust QA/QC program and capture data to thwart the extrapolations that occur in defect litigation. More information can be found with several articles on the subject at http://www.AxisPointe.com
My dad has a newly built home and he noticed that there are already cracks near the doors and basement. It was mentioned here that most common construction defect issues are inadequate grade adjacent to the foundation. Moreover, it’s recommended to consult experts when dealing with construction defects.