IT’S FUNDAMENTAL…WHAT ARE CONSTRUCTION DEFECTS AND WHY ARE THEY SO PREVALENT?

At the outset, it is important to realize that structures can fail for reasons other than construction and design defects:

…all buildings have an expected lifespan and even the structures of the ancient world will erode into a mound of sand given enough time.  The eventual failure of a structure is an expected result rather than a manifestation of a construction defect.[i]

While design and construction professionals can fail to meet standards of care resulting in construction defects and damages, structures are simply not built to last forever and neither are they required to be perfect in design and construction.  The question, then, is whether the failure is due to normal wear and tear, the result of the expiration of the useful life of the structure, a maintenance problem, or one actually due to a construction and/or design defect.[ii]

Construction defects often are initially latent, with a later manifestation of symptoms of the defect.  They can also be patent, that is, they are readily apparent.[iii]  Timing is important for a number of reasons including the impact on statutes of limitations and repose, and the “trigger of coverage”.

Statutes

Construction defects can be defined by statute.  For example, in Nevada, NRS 40.615 defines a constructional defect as…

… a defect in the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance and includes, without limitation, the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance:

1.  Which presents an unreasonable risk of injury to a person or property; or

2.  Which is not completed in a good and workmanlike manner and proximately causes physical damage to the residence, an appurtenance or the real property to which the residence or appurtenance is affixed.[iv]

Florida’s Chapter 558.002, defines a construction defect in this way:

…a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of a dwelling, any appurtenance to the dwelling, or the real property to which the dwelling or appurtenance is affixed resulting from:

(a)  Defective material, products, or components used in the construction or remodeling;

(b)  A violation of the applicable codes in effect at the time of construction or remodeling which gives rise to a cause of action pursuant to s.553.84;

(c)  A failure of the design of a dwelling to meet the applicable professional standards of care at the time of governmental approval; or

(d) A failure to construct or remodel a dwelling in accordance with accepted trade standards for good and workmanlike construction at the time of construction.[v]

A Working Definition

A “construction defect” can be defined as a failure of the construction to perform in an intended or expected way.  This failure to perform can, but not necessarily, cause physical injury to the work itself and/or other property or work.  “Construction defects” include defects in design, faulty work, defective building products/material, and various types of soil failure.

Design defects include:

  • Improper site selection
  • Building/system does not work as designed
  • Defective plans, specifications, selection of improper materials

Defective (physical) construction includes: 

  • Faulty workmanship
  • Poor quality
  • Noncompliance with codes, specifications, plans, product manufacturer instructions, buyer’s expectations, industry standards

Material or products used in a project may be defective, inferior, or inadequate.

Soil defects can be categorized separately and include expansive and saturated soils, and improper grading, fill, compaction, and defective testing.

Some “usual suspects” in construction defect claims include:

  • Saturated, expansive, and poorly compacted soil
  • Improper reinforcement of foundation systems, failure to properly prepare for utilities, failure to properly install anchor bolts, crawl space moisture, and improper foundation waterproofing
  • Defects in civil engineering and site drainage
  • Framing defects encompassing shear panels, absence of fire stopping, out-of- plumb and out-of-plane walls, and balcony deck framing
  • Plumbing defects that include the failure to ream ends of copper pipes that are cut and failure to isolate pipes from framing[vi]

Construction defects can be grouped into the following defect categories: site, building envelope, structural, heating/ventilation/air conditioning, electrical, plumbing, and fire/life safety systems.[vii]

Why do construction defects seem to be occurring more frequently?  A number of reasons have been offered: an abandonment of “the traditional design approach where the architect would utilize established…standards and details…that were similar and consistent, i.e. ‘tried and true’”;  untested new business materials that are limited in application; inadequate design detail; a change in the contractor’s role from “Master Builder” to “master broker” with the latter’s emphasis on “low initial cost and higher profits” overriding the goal of a product free of defects; the priorities of getting the project done as quickly as possible and maximizing profit; the overall “lack of quality assurance and quality control,” and the lack of effective coordination “resulting in scheduling and sequencing problems.”[viii]


[i] Frank Gatlin, AIA, NCARB, Identifying & Managing Design and Construction Defects (Construction/Insight from Hindsight: Issue 5, Winter 2013) http://www.navigant.com/~/media/WWW/Site/Insights/Construction/IFH%20Winter%202013/CON_IdentifyingManagingDesignConstructionDefects_TL_0213.ashx.

[ii] Gatlin.

[iii] Gatlin.

[iv] https://www.leg.state.nv.us/NRS/NRS-040.html#NRS040Sec615, retrieved 1/23/20.

[v] http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0558/Sections/0558.002.html, retrieved 1/23/20.

[vi] Robert S. Mann, Defect-Free Buildings: A Construction Manual for Quality Control and Conflict Resolution (New York, NY: McGraw-Hill Companies, 2007) 92.

[vii] Gatlin.

[viii] Gatlin.

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