{"id":317,"date":"2019-07-30T13:26:59","date_gmt":"2019-07-30T13:26:59","guid":{"rendered":""},"modified":"2019-08-07T11:45:35","modified_gmt":"2019-08-07T11:45:35","slug":"legal-liabilities-defects-construction-7252","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/example-essays\/legal-liabilities-defects-construction-7252.php","title":{"rendered":"Legal Liabilities of Defects in Construction"},"content":{"rendered":"<p><strong>Abstract<\/strong><\/p>\n<p>The purpose of this paper<br \/>\nis to understand the legal liabilities in construction industry due to defects by<br \/>\nstudying different claims and defenses used in real cases. Real law case<br \/>\nstudies are cited to understand the law court and its working to give a brief<br \/>\nunderstanding of such legal matters.<\/p>\n<p>The most common causes of litigation<br \/>\nand disputes in the construction industry in the world are due to defects in Construction.<br \/>\nA specific procedure should be followed for any breach<br \/>\nof law or contract and a law suit can be filed according to civil statute of<br \/>\nlimitations.<br \/>\nIt is common to see disagreement when it comes to identifying what a<br \/>\nconstruction defect is because of the difference in viewpoints and interests of<br \/>\nthose asking the question or making the decision. Statutory definitions for the<br \/>\ndefects in construction changes&nbsp;from state to state<a>.<\/a><strong><br \/>\n<\/strong>A development deformity is for the<br \/>\nmost part characterized as an imperfection in the plan, materials or the<br \/>\nworkmanship that results as a failure of a component of a building or structure<br \/>\nand causes harm to individual or the property. Contractors primarily<br \/>\nworking on local projects are likely to be familiar with the laws and<br \/>\nrequirements in place to deal with construction defects in their area. However,<br \/>\nfor contractors who work on projects nationally, the legal environment may be<br \/>\nless familiar. <\/p>\n<p>Each state has its own<br \/>\nrequirements and building codes. In addition, some states provide contractors<br \/>\nwith the opportunity to repair a defect and potentially alter the as-built<br \/>\nconditions before a contractor can be sued. The Florida state has defined<br \/>\nstatutes chapter 558 and chapter 95 for identification of construction defects<br \/>\nand its legal approach for filing claims and is the guideline for other<br \/>\nconstruction related problems. <\/p>\n<p>Normally the construction<br \/>\ndefect cases are based on the contracts between the homeowner and developer and<br \/>\nthe contracts between the contractor and subcontractors, architects and<br \/>\nengineers, including suppliers, involved in the project. Complains usually are<br \/>\ntowards negligence, breach of contract or warranty, strict liability and it is<br \/>\nimportant to find the party responsible for the same and get the defect<br \/>\nrectified and made correct. <\/p>\n<p>Key words \u2013claims, state<br \/>\nlaws, legal<br \/>\nliabilities, breach of contract, negligence, Construction defects, defenses.<strong><\/strong><\/p>\n<ol>\n<li><strong>INTRODUCTION<\/strong> \u2013<\/li>\n<\/ol>\n<p>Construction defects are one<br \/>\nof the pivotal aspects to look at while either renovating or Buying a new<br \/>\napartment. These defects include cracks in the roof, faults in M.E.P systems<br \/>\nand other minor structural failures that can hamper the value of our Apartment.<br \/>\nSome of these defects are noticeable by our naked eyes whereas some of these<br \/>\ndefects are only noticeable after the damages that they create. These defects<br \/>\nare caused due to design and construction errors. According to dictionary a<br \/>\ndefect is considered as \u201can imperfection that impairs worth or utility\u201d in something.<br \/>\nFlorida\u2019s construction defect statute defines a defect as: a deficiency in, or<br \/>\na deficiency arising out of, the design, specifications, surveying, planning,<br \/>\nsupervision, observation of construction, or construction, repair, alteration,<br \/>\nor remodeling of real property resulting from:<\/p>\n<ol>\n<li>A failure to<br \/>\n     construct a real property in accordance with accepted standards for good<br \/>\n     construction at the time of construction. <\/li>\n<li>A failure of the<br \/>\n     design of real property to meet the applicable professional standards of<br \/>\n     care at the time of governmental approval.<\/li>\n<li>A violation of the<br \/>\n     applicable codes in effect at the time of construction or remodeling which<br \/>\n     gives rise to a cause of action pursuant to s. 553.84;<\/li>\n<li>Defective material,<br \/>\n     products, or components used in the construction or remodeling;<\/li>\n<\/ol>\n<ul>\n<li><strong>Construction defects approach<\/strong>:<\/li>\n<\/ul>\n<p>Considering the above keys<br \/>\nto successful defending defect claims include:<\/p>\n<ul>\n<li>determining<br \/>\n     applicable standards of care;<\/li>\n<li>identifying other<br \/>\n     parties who can assist in the investigation of the claim;<\/li>\n<li>understanding the<br \/>\n     nature of the defects and whether it arises from design, construction, or<br \/>\n     both;<\/li>\n<li>identifying<br \/>\n     potentially responsible parties;<\/li>\n<li>identifying<br \/>\n     applicable contract provisions;<\/li>\n<li>determining governing<br \/>\n     law.<\/li>\n<\/ul>\n<p>Once a construction defect<br \/>\nis identified, determining who may be at fault involves not only understanding<br \/>\nthe specific causes of the defect, but also the contractual obligations of the<br \/>\nparties involved and the level of performance that was required of them. It<br \/>\nalso requires an examination of whether one party has assumed the obligations<br \/>\nof another either by contract or law. <\/p>\n<p><strong>2.0 law claims &#8211;<\/strong><\/p>\n<p>Construction defects come under both federal and state<br \/>\nlaw, though typically these claims are litigated\/arbitrated under state law.<br \/>\nWhile many claims and defenses are created by statute, decisional case law<br \/>\nplays an integral role in not only defining the scope and application of these<br \/>\nclaims and defenses, but sometimes in limiting them. <\/p>\n<ol>\n<li><strong>Magnuson-Moss:<\/strong><\/li>\n<\/ol>\n<p>\u201cThe Magnuson-Moss Federal<br \/>\nTrade Commission Improvement Act (\u201cthe Magnuson-Moss Act\u201d or \u201cAct\u201d) provides<br \/>\ncertain remedies to \u201cconsumers\u201d against \u201csuppliers\u201d and others providing<br \/>\nexpress and implied warranties for breach of those warranties in connection with<br \/>\nthe sale of \u201cconsumer products\u201d as defined by the Act. While the Magnuson-Moss<br \/>\nAct does not create any new warranties, it allows consumers to enforce existing<br \/>\nwarranties and provides a private cause of action in state or federal court<br \/>\nagainst the \u201csupplier\u201d or other person who gives or offers to give a written<br \/>\nwarranty or who is or may be obligated under an implied warranty. Application<br \/>\nof the Magnuson-Moss Act to construction defects appears limited to those<br \/>\ninvolving \u201cconsumer products\u201d which are primarily for personal, familyuse and are not for resale. Further, in<br \/>\norder to enforce an implied warranty under the Act, privity is required under<br \/>\nFlorida law. While the Magnuson-Moss Act may have some utility in the<br \/>\nconstruction defect arena, such as with defective building materials, other<br \/>\nstatutory and common law remedies, discussed below, have broader application to<br \/>\nconstruction defects.\u201d.<\/p>\n<ul>\n<li><strong>Uniform Commercial Code:<\/strong><\/li>\n<\/ul>\n<p>\u201cIn the context of the<br \/>\nsale of \u201cgoods\u201d, the UCC provides buyers with certain implied warranties. In a<br \/>\nbreach of implied warranty case, the plaintiff has the burden of establishing<br \/>\nthat a defect was present in the product; that it caused the injuries<br \/>\ncomplained of; and that the defect existed at the time the retailer or supplier<br \/>\nparted possession with the product. This burden may be satisfied where the<br \/>\nproduct malfunctions during normal operations, based upon the legal inference<br \/>\nthat the product was defective at the time of injury and at the time it was<br \/>\nwithin the control of the supplier. A breach of these implied warranties allows<br \/>\nthe buyer to recover both actual and consequential damages from the seller.<br \/>\nHowever, a buyer may not recover both the purchase price and the cost to remedy<br \/>\nthe seller\u2019s breach, as such an award would place the buyer in a better<br \/>\nposition than it would have been had the contract been fully performed.<a href=\"ms-local-stream:\/\/EpubReader_171095DBFC8E4F10971A785A9B837224\/Content\/OEBPS\/ch001s003.html#ch001s003_fn024\"><sup>24<\/sup><\/a> Unlike the Magnuson-Moss<br \/>\nAct, whose reach is limited to defective products in the personal, family or<br \/>\nhousehold setting, the UCC\u2019s application is much broader\u201d.<\/p>\n<ul>\n<li><strong>&nbsp;Express warranty claims:<\/strong><\/li>\n<\/ul>\n<p>Warranties created by contractual obligations which<br \/>\nthe contractor sells in his contracts.&nbsp;<br \/>\nExpress warranties do not always require words to be created but can<br \/>\nderive from the conduct of the seller such as where the seller shows the buyer<br \/>\na blueprint or other description of the goods sold. Under Florida law, written<br \/>\nwarranties are treated like a contract between a buyer and seller and may<br \/>\ntherefore limit or foreclose available remedies. <\/p>\n<ul>\n<li><strong>Statutory warranty claims:<\/strong><\/li>\n<\/ul>\n<p>Statutory warranties are granted by statute or exist<br \/>\nas common law. Implied warranties come under both federal and state law.<br \/>\nchapter 558 of Florida state law specifies the warranty claim laws. <\/p>\n<p>From the case of <em>Gables v. Silver<\/em>, the Florida<br \/>\nSupreme Court included common law implied warranties of merchantability and<br \/>\nfitness to the sale of new homes and condominiums. As Florida joined a rapidly<br \/>\ngrowing minority of states which has recognized, as an exception to the general<br \/>\nrule of caveat emptor in sales of real estate which is an implied warranty of<br \/>\nhabitability for the sale of new homes.<\/p>\n<ul>\n<li><strong>Deceptive and Unfair Trade<br \/>\nPractices Act<\/strong><\/li>\n<\/ul>\n<p>\u201cKnown as Florida\u2019s<br \/>\n\u201clittle FTC (Federal Trade Commission) Act\u201d, the Florida Deceptive and Unfair<br \/>\nTrade Practices Act (\u201cFDUTPA\u201d or \u201cAct\u201d), protects the consuming public and<br \/>\nlegitimate business enterprises from those who engage in unfair methods of<br \/>\ncompetition, or unconscionable, deceptive, or unfair acts or practices in the<br \/>\nconduct of any trade or commerce. The Act focuses on whether an act is<br \/>\ndeceptive, not whether a defendant knew that the allegedly violative conduct<br \/>\nwas occurring. FDUTPA provides a civil remedy to anyone aggrieved by a<br \/>\nviolation of the statute without regard to any other remedy or relief to which<br \/>\nsuch person is entitled. While earlier versions of the statute applied only to<br \/>\n\u201cconsumers\u201d engaged in a \u201cconsumer transaction\u201d the current statute applies to<br \/>\nboth private individuals and commercial interests. Thus, Florida courts have<br \/>\nconcluded that \u201cthe 1993 Amendments to FDUTPA made clear that the statute is<br \/>\nnot limited to purely \u201cconsumer transactions,\u201d but rather apply \u201cto any act or<br \/>\npractice occurring \u2018in the conduct of any trade or commerce\u2019 even as between<br \/>\npurely commercial interests.\u201d However, a \u201cconsumer transaction\u201d actionable<br \/>\nunder the statute may not apply to sophisticated commercial transactions<br \/>\nbetween a manufacturer and distributor. &nbsp;<\/p>\n<ul>\n<li><strong>Condominium Act:<\/strong><\/li>\n<\/ul>\n<p>\u201cFlorida\u2019s Condominium Act<br \/>\ngrants developers and purchasers of new condominiums certain implied warranties<br \/>\nagainst defects in construction. The warranties provided by the developer to<br \/>\npurchasers are broader than those provided by the contractor, subcontractors<br \/>\nand suppliers to the developer and purchasers. While the former encompasses<br \/>\nboth fitness and merchantability for purposes or uses intended and extends to<br \/>\nall personal and real property provided by the developer either in the unit or<br \/>\nfor use by unit owners, the latter encompasses only fitness as to the work<br \/>\nperformed or materials supplied. These warranties apply to the contractor and<br \/>\nany lower tiered subcontractors and suppliers, but not to manufactures. To follow<br \/>\nthe statutory implied warranty of fitness, the contractor (subcontractor) must<br \/>\nprovide work and materials which conform with generally accepted standards of<br \/>\nworkmanship and performance of similar work and materials meeting requirements<br \/>\nspecified in the contract. <\/p>\n<p>The warranties provided by<br \/>\nthe statute vary in duration from one to three years and, depending on the<br \/>\nspecific warranty provided, are measured from either the date of closing of the<br \/>\npurchase or possession (whichever is earlier), completion of a building or<br \/>\nimprovement(s), or completion of all construction it should be noted that with<br \/>\nrespect to warranties provided by the developer, the warranty period is<br \/>\nextended for one year after owners other than the developer obtain control of<br \/>\nthe association, whichever occurs last, but in no event more than five years. <\/p>\n<p>For purposes of<br \/>\ncalculating the warranty period, \u201ccompletion of construction\u201d means issuance of<br \/>\na certificate of occupancy from the governmental authority having jurisdiction<br \/>\nover the work (i.e., the building department), or, where such certificates or<br \/>\ntheir equivalents are not issued, the building has reached substantial<br \/>\ncompletion of the work according to the plans and specifications. These<br \/>\nwarranties extend not only to initial purchasers but also to successor owners.\u201d\n<\/p>\n<ul>\n<li><strong>Building Code Violation<\/strong><\/li>\n<\/ul>\n<p>\u201cThe Florida Building Code<br \/>\nAct (\u201cthe FBC Act\u201d) provides a private cause of action to anyone damaged as a<br \/>\nresult of a violation of the statute against the person or party who committed<br \/>\nthe violation. In other words, where construction fails to comply with the<br \/>\nFlorida Building Code, then, without any other remedies, the FBC Act provides<br \/>\nan aggrieved party with a civil remedy against the contractor. However,<br \/>\nliability under the FBC Act does not extend to the contractor\u2019s qualifying<br \/>\nagent. Furthermore, a remedy under the statute is unavailable when all required<br \/>\npermits are obtained, the building department or other governmental agency<br \/>\nhaving jurisdiction over the work approves the plans, and the construction<br \/>\nproject passes all required inspections under the code, unless the person or<br \/>\nparty (committing the violation) knew or should have known that the violation<br \/>\nexisted. Moreover, where a contractor establishes compliance with the statute<br \/>\nby demonstrating that it obtained the required permits, the plans were<br \/>\napproved, and the construction passed all required inspections, a party\u2019s bare<br \/>\nallegation that the contractor comply with the Florida Building Code, then,<br \/>\nnotwithstanding any other available remedies, the FBC Act provides an aggrieved<br \/>\nparty with a civil remedy against the contractor. However, liability under the<br \/>\nFBC Act does not extend to the contractor\u2019s qualifying agent. Furthermore, a<br \/>\nremedy under the statute is unavailable when all required permits are obtained,<br \/>\nthe building department or other governmental agency having jurisdiction over<br \/>\nthe work approves the plans, and the construction project passes all required<br \/>\ninspections under the code, unless the person or party (committing the<br \/>\nviolation) knew or should have known that the violation existed. Moreover,<br \/>\nwhere a contractor establishes compliance with the statute by demonstrating<br \/>\nthat it obtained the required permits, the plans were approved, and the<br \/>\nconstruction passed all required inspections, a party\u2019s bare allegation that<br \/>\nthe contractor \u201cknew or should have known that violations existed\u201d is<br \/>\ninsufficient to establish a claim under the statute.\u201d <\/p>\n<p><strong>3.0 LAW DEFENSES<\/strong><\/p>\n<ol>\n<li><strong>THE SPEARIN DOCTRINE<\/strong><\/li>\n<\/ol>\n<p>According<br \/>\nto Spearin Doctrine, for any defects caused due to errors in design supplied by<br \/>\nprofessional \/other representatives, the contractor is not responsible for it.<br \/>\nThe Spearin Doctrine establishes that the owner agrees that the design is<br \/>\ncorrect and to be executed as in the planned to the contractor thereby<br \/>\nreleasing him from the liabilities for the consequences of the defect. <\/p>\n<ul>\n<li><strong>Statute of Frauds<\/strong><\/li>\n<\/ul>\n<p>This was formed to avoid<br \/>\nclaims and frauds based on the verbal statement by the lapse of time. As noted<br \/>\nby the Florida Supreme Court: \u201cThe statute of frauds grew out of a purpose to<br \/>\nintercept the frequency and success of actions based on nothing more than loose<br \/>\nverbal statements or mere innuendos. To achieve this, the statute requires that<br \/>\nall actions based on agreements for more than one year must be a memorandum or<br \/>\nwritten statement, signed by the party to be charged. The statute should be<br \/>\nstrictly construed to prevent the fraud it was designed to correct, and so long<br \/>\nas it can be made to effectuate this purpose, courts should be reluctant to<br \/>\ntake cases from its protection.\u201d <\/p>\n<ul>\n<li><strong>Prior Material Breach:<\/strong><\/li>\n<\/ul>\n<p>Sometimes the breach of<br \/>\nthe agreement in the contract is not always because of the failure to perform.<br \/>\nIn order to be a breach, the failure to perform must not be a minor but \u201cmaterial\u201d.<br \/>\nA provision is material where it \u201cgo(es) to the essence of the contract.\u201d Where<br \/>\na prior material breach occurs by one party, the non-breaching party is<br \/>\ndischarged of any further obligations remaining under the contract, provided<br \/>\nhowever, that the non-breaching party must first establish performance on its<br \/>\npart. As the Court in <em>Hyman v. Cohen<\/em> noted: A material breach, gives to<br \/>\nthe right to rescind the contract or to treat it as a breach of the entire<br \/>\ncontract to the injured party\u2014in other words, an entire\/total breach\u2014and to<br \/>\nmaintain an action for damages for a total breach. Whenever there is a total<br \/>\nbreach of a contract by one party to it, the other is at liberty to treat the<br \/>\ncontract as broken and desist from any further effort on his part to perform<br \/>\nit. In other words, he may abandon it and recover as damages for the breach the<br \/>\nprofits he would have received by a full performance.<\/p>\n<ul>\n<li><strong>THE SLAVIN DOCTRINE<\/strong><\/li>\n<\/ul>\n<p>According<br \/>\nto <em>Slavin<\/em> doctrine, the contractor is not responsible for the defects<br \/>\nand losses like personal injury or property damage from defective construction<br \/>\nas the owner of the property finally accepted the work with knowledge of the<br \/>\ndefect giving rise to the claim. If the defect is of patent type, then the<br \/>\nowner of the property will be held responsible However insufficient knowledge<br \/>\nof the defect or defects that are visible only after a time period do not works<br \/>\nin the favor of contractor and the contractor might be held responsible for the<br \/>\ndefect. As one court has described, \u201cThe <em>Slavin<\/em> doctrine considers the<br \/>\nrespective liability of an owner and contractor, after the owner has resumed<br \/>\npossession of the construction, for injuries to a third person for negligence<br \/>\nof the contractor in the construction of the improvement.\u201d <\/p>\n<ul>\n<li><strong>The Economic Loss Doctrine<\/strong><\/li>\n<\/ul>\n<p>Doctrine<br \/>\nconsiders all the losses which are financial in nature and involve loss of<br \/>\ncapital. Under this doctrine, the plaintiff must plead something in addition to<br \/>\na purely economic loss for their claim to stand. However, in recent years, the<br \/>\nFlorida Supreme Court has found this doctrine to apply strictly to product<br \/>\nliability, which may have a significant impact on its future application.<\/p>\n<p><strong>4.0 Florida law<br \/>\nlimitations:<\/strong><\/p>\n<ol>\n<li><strong>Right to Cure<\/strong><\/li>\n<\/ol>\n<p>Florida state has \u2018right<br \/>\nto cure\u2019 statutes, which states that the project owner\/ homeowner, must first<br \/>\nnotify the construction professional of the defects and allow them the<br \/>\nopportunity to repair the defect before filing a lawsuit. For Florida state a<br \/>\n60 day wait period following the 558 notice is to follow and this time is to be<br \/>\ngiven to the party to repair or cure the damages. <\/p>\n<ul>\n<li><strong>Statute of Repose<\/strong><\/li>\n<\/ul>\n<p>Even if the defect is not<br \/>\nfound in the stated time period of ten years for construction defects, statute<br \/>\nof repose limits the duration to file a suit. In Florida, any defect in<br \/>\nproperty should fall under the time period of both the statute of limitations<br \/>\nand statute of repose after the possession and discovery of defect. This period<br \/>\nis also stated in the Florida state law chapter 95 section 03.<\/p>\n<ul>\n<li><strong>Statutes of limitations<\/strong><\/li>\n<\/ul>\n<p>Every state has its own<br \/>\nprocedure to resolve the disputes between designers, contractors, and<br \/>\nsubcontractors. Claims like breach of warranty, tort claims and contract<br \/>\ndisputes will determine the amount of time one has to file a lawsuit and this<br \/>\ndeadline is known as statute of limitations. Florida statute of limitations<br \/>\nsays a period of four years needs to be considered for filing a law suit.<br \/>\nChapter 95 of Florida state law describes the limits for different claims and<br \/>\ncases in detail. <\/p>\n<p>\u201cAn action founded on the<br \/>\ndesign, planning, or construction of an improvement to real property, with the<br \/>\ntime running from the date of actual possession by the owner, the date of the<br \/>\nissuance of a certificate of occupancy, the date of abandonment of construction<br \/>\nif not completed, or the date of completion or termination of the contract<br \/>\nbetween the professional engineer, registered architect, or licensed contractor<br \/>\nand his or her employer, whichever date is latest; except that, when the action<br \/>\ninvolves a latent defect, the time runs from the time the defect is discovered<br \/>\nor should have been discovered with the exercise of due diligence. In any<br \/>\nevent, the action must be commenced within 10 years after the date of actual<br \/>\npossession by the owner, the date of the issuance of a certificate of<br \/>\noccupancy, the date of abandonment of construction if not completed, or the<br \/>\ndate of completion or termination of the contract between the professional<br \/>\nengineer, registered architect, or licensed contractor and his or her employer,<br \/>\nwhichever date is latest. Completion of the contract means the later of the<br \/>\ndate of final performance of all the contracted services or the date that final<br \/>\npayment for such services becomes due without regard to the date final payment<br \/>\nis made.\u201d <\/p>\n<p><strong>5.0 TYPES OF DEFECTS:<\/strong><\/p>\n<p>Construction defects usually<br \/>\ninclude any deficiency in the planning, design, inspection, supervision,<br \/>\nconstruction or observation of construction to any new home or building, where<br \/>\nthere is a failure to construct the building in a reasonably workmanlike manner<br \/>\nand\/or the structure fails to perform in the manner that is reasonably intended<br \/>\nby the buyer. Some of the most common and high-cost construction defects<br \/>\ninclude:<\/p>\n<ul>\n<li>Mechanical<\/li>\n<li>Electrical<\/li>\n<li>Expansive soils<\/li>\n<li>Structural integrity &#8211; concrete,<br \/>\n     masonry &amp; division, carpentry, unstable foundations<\/li>\n<li>Water intrusion (often resulting<br \/>\n     in toxic mold)<\/li>\n<li>Thermal and moisture protection<\/li>\n<li>Finishes<\/li>\n<\/ul>\n<p>Generally, courts<br \/>\ncategorize defects in one of four categories:&nbsp;\n<\/p>\n<ol>\n<li><strong>Construction Defects \u2013<\/strong><\/li>\n<\/ol>\n<p>Inferior workmanship can<br \/>\ncreate a series of problems eve if the design and material are proper. For<br \/>\ninstance, the failure to install proper ventilation may result in extra<br \/>\nmoisture and mold growth.<\/p>\n<ul>\n<li><strong>Subsurface Defects \u2013<\/strong><\/li>\n<\/ul>\n<p>&nbsp;These defects are related to the actual ground<br \/>\non which the project is built, it becomes a defect if builders fail to account<br \/>\nfor shifting soil or steep hillsides.<\/p>\n<ul>\n<li><strong>&nbsp;Material Defects \u2013<\/strong><\/li>\n<\/ul>\n<p>Poorly designed or<br \/>\nmanufactured materials can cause major problems, such as leaky windows or<br \/>\ndeteriorated flashing. The use of inferior building materials can cause<br \/>\nsignificant problems, such as windows that leak or fail to function adequately<br \/>\neven when properly installed. Common manufacturer problems with building<br \/>\nmaterials can include deteriorating flashing, building paper, waterproofing<br \/>\nmembranes, asphalt roofing shingles, particle board, inferior drywall and other<br \/>\nwall products used in wet and\/or damp areas, such as bathrooms and laundry<br \/>\nrooms. Building materials may be defective or damaged, leading to failure<br \/>\ndespite proper design and construction.<\/p>\n<ul>\n<li><strong>Design Defects \u2013<\/strong><\/li>\n<\/ul>\n<p>&nbsp;These are problems caused by architectural \/ Engineering<br \/>\ndesigns that were not properly executed or else didn&#8217;t perform as expected.<br \/>\nTypical design deficiencies relate to building outside of the specified code.<br \/>\nRoofs are an example of a typical design defect that result in water<br \/>\npenetration, intrusion, poor drainage, or inadequate structural support.<\/p>\n<p><strong>6<\/strong>.<strong>0<\/strong> <strong>Liability for Construction<br \/>\nDefects<\/strong> &#8211; <\/p>\n<p>When someone is faced with<br \/>\na construction defect, the first step is to determine whether it is a defect in<br \/>\ndesign, materials, construction, or subsurface. It might seem hard to find the<br \/>\nresponsible party at first, particularly since so many parties are involved in<br \/>\na single project. Then client and his attorney will want to determine the<br \/>\nappropriate cause of action. Allegations typically include one or more of the<br \/>\nfollowing:<\/p>\n<ul>\n<li>Breach of Contract<\/li>\n<\/ul>\n<p>Breach of contract is when a contractor is unable to<br \/>\nfollow the contract guidelines and specifications for example if the flooring<br \/>\nwas required to be of a certain company and style and the contractor uses a<br \/>\ndifferent one in the construction, the owner can file a notice or a claim to<br \/>\nremodify the problem.&nbsp; Usually When such<br \/>\nclaims are made, courts often invoke the doctrine of substantial performance,<br \/>\nwhich typically requires the builder to pay the contract price with the<br \/>\ndeduction for the reduced market value of the home\/unit caused by the failure<br \/>\nof the builder to strictly comply with the plans and specifications.<\/p>\n<ul>\n<li>Negligence<\/li>\n<\/ul>\n<p>The most common allegation<br \/>\nwhen assigning fault for a construction defect is that of negligence. The law<br \/>\nimposes the obligation upon the developer\/general contractor\/ subcontractor to<br \/>\nwork out&nbsp;the&nbsp;sensible&nbsp;degree of care,&nbsp;aptitude,<br \/>\nand&nbsp;information&nbsp;that is&nbsp;customarily&nbsp;utilized&nbsp;by such<br \/>\nbuilding&nbsp;professionals. The&nbsp;obligation&nbsp;of care covers&nbsp;all<br \/>\nwho may foreseeably be&nbsp;harmed&nbsp;by the construction defects including<br \/>\nthe owner.&nbsp;Engineers&nbsp;and&nbsp;general contractors are&nbsp;responsible&nbsp;for<br \/>\nthe&nbsp;carelessness&nbsp;of their subcontractors.<\/p>\n<ul>\n<li>Breach of Warranty<\/li>\n<\/ul>\n<p>The purchase documentation between the developer and<br \/>\nthe owner often sets forth warranties regarding the condition of the property,<br \/>\nadditionally courts have held that there are certain implied warranties with<br \/>\nrespect to a home. For example, if the exterior walls disintegrate after the<br \/>\nfirst rainfall, it may be considered a breach of warranty even if the<br \/>\ndocumentation did not specifically mention the exterior walls.<\/p>\n<ul>\n<li>Fraud &amp; Negligent Misrepresentation<\/li>\n<\/ul>\n<p>Fraud allegation is when the developer promises the<br \/>\nquality of construction by showing false statements or advertisements. It must<br \/>\nbe shown that the developer has not followed the design plans and<br \/>\nspecifications as promised. <\/p>\n<ul>\n<li>Strict Liability<\/li>\n<\/ul>\n<p>In most jurisdictions, the implied warranty of<br \/>\nhabitability imposes strict liability on the general contractor. The theory of<br \/>\nstrict liability against a general contractor evolved from products liability<br \/>\nlaw. In a strict liability case the plaintiff does not have to prove the<br \/>\ngeneral contractor or developer was negligent in the construction of the home.<br \/>\nThey do have to prove the defendant was involved in the mass production of<br \/>\nhousing, a defect in the house exists, damages were proximately caused by the<br \/>\ndefect, and the defendant caused or created the defect.<\/p>\n<p><strong>7.0 Conclusion-<\/strong><\/p>\n<p>This paper contains a brief overview of laws concerning various<br \/>\nlegal topics and litigation. This paper provides a simple synopsis of current<br \/>\nlaw and is not intended to explore lengthy analysis of legal issues furthermore<br \/>\nit can be used to understand the basics of construction defects and how they can<br \/>\nbe dealt with in the state of Florida. The paper defines the defects in the<br \/>\nconstruction by law and has information on the defenses and their claims which<br \/>\ncan be used in a lawsuit. This topic can help contractors, other professionals,<br \/>\nand owners to work in the industry according to law and gain reputation for<br \/>\ntheir work.&nbsp; <\/p>\n<p><strong><em>References-<\/em><\/strong><\/p>\n<ul>\n<li>Florida Construction Defect Litigation, 2016 by GARY L. BROWN<\/li>\n<li><a href=\"http:\/\/www.leg.state.fl.us\/Statutes\/index.cfm?App_mode=Display_Statute&amp;URL=0000-%20%20%20%200099\/0095\/0095.html\">http:\/\/www.leg.state.fl.us\/Statutes\/index.cfm?App_mode=Display_Statute&amp;URL=0000-&nbsp;&nbsp;&nbsp; 0099\/0095\/0095.html<\/a><\/li>\n<li> Fla. Stat. \u00a7 718, et seq.<\/li>\n<li>Fla. Stat., \u00a7 553.70, et seq. also Fla. Stat. \u00a7 553.84.<\/li>\n<li> <em>See<\/em> Fla. Stat. \u00a7\u00a7 672.714, 672.715, also refer case study-http:\/\/www.lawjournalpress.com\/citationservice\/CitationServices.aspx?citation=Marcus v. Anderson\/Gore Homes, Inc. <\/li>\n<li><em>See<\/em> Fla. Stat. \u00a7 501.202(2). <\/li>\n<li>Discussed in \u00a7 1-5:1 <em>supra<\/em>. <a href=\"ms-local-stream:\/\/EpubReader_7F89649649F044F2BDD82510A16F17BB\/Content\/OEBPS\/ch001s006.html#ch001s006_fn186_fn186\"><sup>186<\/sup><\/a><a href=\"http:\/\/www.lawjournalpress.com\/citationservice\/CitationServices.aspx?citation=United%20States%20v.%20Spearin,%20248%20U.S.%20132(1918)&amp;type=C\">United States v. Spearing, 248 U.S. 132(1918)<\/a>.<\/li>\n<li>&nbsp;<em>See<\/em> Fla. Stat. \u00a7 725.01; <em>see also<\/em> Fla. Stat. \u00a7 672.201<\/li>\n<li><a href=\"https:\/\/www.uslaw.org\/files\/Compendiums2016\/Construction16\/Construction_Compendium_Florida_2016.pdf\">https:\/\/www.uslaw.org\/files\/Compendiums2016\/Construction16\/Construction_Compendium_Florida_2016.pdf<\/a><\/li>\n<li>Chapter 95 <a href=\"http:\/\/www.leg.state.fl.us\/Statutes\/index.cfm?App_mode=Display_Statute&amp;URL=0000-0099\/0095\/0095.html\">http:\/\/www.leg.state.fl.us\/Statutes\/index.cfm?App_mode=Display_Statute&amp;URL=0000-0099\/0095\/0095.html<\/a><\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"<p>The purpose of this paper is to understand the legal liabilities in construction industry due to defects by studying different claims and defenses used in real cases. <\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[84],"class_list":["post-317","post","type-post","status-publish","format-standard","hentry","category-example-essays","tag-us-law"],"yoast_head":"<!-- This site is optimized with the Yoast SEO Premium plugin v26.6 (Yoast SEO v26.6) - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Legal Liabilities of Defects in Construction | LawTeacher.net<\/title>\n<meta name=\"description\" content=\"The purpose of this paper is to understand the legal liabilities in construction industry due to defects by studying different claims and defenses used in real cases.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" 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