Construction Defect Lawsuit: Choosing a Course of Action

Construction, Defect, Legal Claim

In a new home, the presence of defects in construction can give rise to legal claims by the homeowner against the builder. This type of lawsuit may entail a number of legal theories depending on the type of defect, the manner that the defect occurred, and the state in which the lawsuit is brought. Below is a summary of the legal actions that can be asserted against a builder for faulty construction.

Breach of warranty. When a defect is observed, the first and most logical source of protection is the warranty claim. Builders of new construction home typically provide the homeowner with a warranty on the home. The warranty, which often extends for one year, makes certain assurances regarding the condition of the property. In almost all cases, warranties are provided for a limited and specified amount of time. If a defect in workmanship or materials is detected within the year, the owner can bring a breach of warranty claim against the builder.

Breach of contract. If the owner discovers a defect either not covered by the warranty or the warranty has already expired, he may be able to assert a breach of contract claim. A breach of contract claims entails that the owner and builder are in privity of contract. If so, when the homeowner observes a defect after he has moved in, he has standing to sue the builder with whom he contracted. The claims against a builder may include failure to perform, defective workmanship or materials, late performance of the contract or any claim arising from failure to satisfy the terms agreed to by the parties.

Negligence or strict liability. In many states, strict liability is applicable when a defect occurs. Under a strict liability theory, a homeowner need not demonstrate that the builder was negligent in constructing the home. The plaintiff must show only that a dangerous condition exists; the damages were caused by the defect; and the defendant was responsible for the defect. In contrast, a negligence claim arises when the homeowner can demonstrate that the builder’s negligent action was the cause of the plaintiff’s injury. A negligence action can be brought against a number of parties, including the builder, contractor, or subcontractor depending on the defect.

The experienced team of attorneys at the Law Offices of Mark Weinstein, P.C. can help you litigate your real estate claims. Contact Mark Weinstein and his colleagues at (770) 888-7707 or visit them at to find out how they can advise you.

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