At TKLO, we represent homeowners and homeowner associations in construction defect matters as well as construction professionals.
What is a Construction Defect?
Generally speaking, a construction defect is a deficiency in the design or construction of a building resulting from a failure to design or construct that building in a reasonably workmanlike manner, and/or in accordance with the applicable code. The most dangerous defects have the capacity to cause the building to fail, resulting in physical injury to its occupants or damage to property. Many construction defects cause harm to the property owner in the form of loss of use, diminution in value, and extra expenses incurred while the defects are corrected.
How are Construction Defects Identified?
The most significant construction defects allow water to penetrate a building, or cause the building’s foundation to move. If you suspect your home may suffer from construction defects, be on the lookout for the following:
- Moisture or water leakage inside your home;
- Windows or doors that do not close correctly;
- Cracks in drywall, tile work, cabinets, and concrete slabs or foundations;
- External stucco or siding that is cracking, flaking or staining; or
- Roofs that leak or pond water.
What If My Home Has Construction Defects?
Colorado has adopted the Construction Defect Action Reform Act (also known as “CDARA”) which governs all actions against construction professionals. Under CDARA, a party claiming damages related to construction and/or design defects may recover “actual damages.” “Actual damages” is defined as the lesser of the: (1) fair market value of the real property without the alleged construction defect; (2) replacement cost of the real property; or (3) reasonable cost to repair the alleged construction defect, together with relocation costs.
Before a lawsuit is filed against a construction professional, however, CDARA requires a Notice of Claim process. The purpose of the Notice is to provide the construction professional with notice, 75 days prior to filing litigation (or 90 days prior in the case of commercial property), describing the construction defects. 30 days after receiving the Notice, the construction professional must be allowed to inspect the alleged defects. After the conclusion of the inspection, the construction professional is allowed 30 days (or 45 days in the case of commercial property) to make an offer to settle the claim through corrective work or payment. The offer of settlement does not have to be accepted by the home owner, but the offer must remain open for 15 days. After the Notice of Claim process is complete, a lawsuit can be filed.
What If I am A Construction Professional?
We typically don’t defend construction professionals in construction defect litigation, but we do often help constructional professionals.
For instance, in addition to mechanic’s liens, the Colorado Construction Trust provides that all funds disbursed to any contractor under on any construction project shall be held in trust for the payment of subcontractors, laborer or material suppliers. As a result, if a general contractor does not pay its subcontractors and instead uses the money paid by an owner for other projects, for overhead, or on personal expenses, that general contractor may be liable for treble damages, attorney fees and costs.
At TKLO, we focus on single family homes and small home owner associations because we believe that everyone whose home suffers from construction defects deserves quality representation.
We also believe that good contractors should be paid for the services and material they provide, which is why we enjoy helping construction professionals with mechanic’s liens, payment issues and other business disputes. Call TKLO for a free consultation.