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Construction And Design Defects

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Texas Construction and Design Defect Attorney

Construction defect and design defect claims can be extremely complex and complicated. They are one of the most common causes of disputes and litigation in the construction industry. There is often disagreement when it comes to identifying what a construction defect is. This is due to the different viewpoints and interests of the parties making the determination. Construction and Design Defect litigation hinges on a technical interpretation of design specs, product specs, engineering decisions, builder contracts, and expert testimony. Kirkpatrick Law has experience in working on these types of disputes. We can help you navigate through your defect claim.

Types of Defects

Construction defects are generally defined as a defect in the design, the workmanship, and/or in the materials or systems used on a project that results in a failure of a component part of a building or structure.  This failure then causes damage to a person or property.  Typically, resulting in financial harm to the owner.  The question here is how do you identify construction and design defects?  Additionally, how do you protect yourself?

There are two types of construction defects, patent defects, and latent defects.

  • Patent Defects – defects that are known or obvious based on inspection
  • Latent Defect – defects that are concealed and not readily observable

As stated above, construction defects include both design and workmanship defects. A design defect often is the result of the design professional’s failure to produce an accurate and well-coordinated set of construction documents.  These defects are usually stated as an error, omission, or both. A design error is a mistake in a design element that is uncovered during construction. This typically requires a replacement or redesign to correct the error. Omission defects occur when something required to complete a project or comply with codes is not on the plans or specifications.

Workmanship defects generally occur from the contractor’s failure to build a structure per the construction documents. These can be elements such as improperly installed weatherproofing systems, improperly installed stucco, or soils that were not properly compacted.

It is also important to understand the difference between an actual construction defect and a mere nuisance claim.  A nuisance claim is simply a claim disguised as a construction claim that is due to lack of maintenance on the owner’s part of normal wear and tear. These claims are not construction claims and the courts don’t look favorably on these types of claims.

Statute of Limitations

In the state of Texas, the statute of limitations, which is the time allowed to bring a lawsuit, is 10 years after substantial completion.  This means once a project has ended you have 10 years to file a claim. As specified in Sections 16.008 and 16.009 of the Texas Civil Practice and Remedies Code, this applies to:

  • Injury, damage, or loss to real or personal property;
  • Personal injury;
  • Wrongful death;
  • Contribution; or
  • Indemnity

This 10-year period can be extended by two years if the claimant presents a written claim or if damage, injury, or death occurs in the 10th year of the limitations period.

However, this can be a little more complicated because the 10-year statute of limitations is not the only limitation to keep in mind. This is due to possibly being held to a four-year or even two-year deadline. As stipulated by Section 16.003, a claimant has two years to file a claim “after the day the cause of action accrues.” A claimant will have four years to file a claim if it involves a claim for breach of contract. However, the 10-year statute of limitations still applies regardless of when the defect is discovered. This is further complicated because the two and four-year deadlines do not apply to the state or a political subdivision of the state. As can be seen, you need to consult with an experienced construction attorney as soon as possible so you don’t lose your claim.

Common Construction Defects

If you have been given notice of a construction defect, reach out to a construction attorney as soon as possible. You need an attorney with knowledge of construction defects to handle the complicated nature of these claims.

Some of the most common construction defect notices involve the following:

  • Cracked foundations
  • Drywall issues
  • Structural problems
  • Faulty roofing
  • Faulty window/door seals
  • Mold intrusion
  • Poor waterproofing
  • Soil subsidence

Houston Construction and Design Defect Attorney

Kirkpatrick Law has successfully protected builders and design firms who were facing exposure in construction defect disputes. Additionally, we have helped represent and win awards on behalf of buyers/owners who discovered design defects or construction defects the hard way. Eric has litigated a wide range of defect cases.  If you need help protecting your project or you recently discovered a defect, give us a call today.  We are ready to help you.