Latent vs. Patent: No, Not Shoes or Intellectual Property—We’re Talking Construction Defects.

Real Estate Law

At the heart of any construction defect litigation is the question of whether the work performed was indeed defective.

To be actionable, any deficiency in the construction process— whether it is a defective design, defective materials or defective workmanship— must ultimately cause damage to a person (i.e., personal injury) or to property (i.e., financial or other damages).

When it comes to construction projects, defect claims can be anything from work not meeting the homeowner’s expectations, to something as serious as structural defects. Given this broad range of possibilities of defects, the outcome of any case will depend on the severity of the defect.

Defects Can Be Patent or Latent.

While a defect can be either one of design, workmanship, or material, there are generally two types of construction defects:

  1. Patent, or
  2. Latent.

Patent Defects.

Patent defects are defects that are obvious. They tend to be defects that can be seen or detected on the surface level. This means that they are frequently obvious during inspections. Thus, a patent defect is one that a contractor, sub or other trade should find during normal inspections.

Because they are readily obvious, patent defects are generally easy to fix. Many times they are aesthetic problems that are not serious and can be easily corrected.

Although obvious, that doesn’t mean that all patent defects are immediately noticed by the homeowner. However, the fact that a patent defect is not noticed for a long time for whatever reason, does not turn it into a “latent” defect. Patent defects, even if not noticed by anyone, are considered to be defects that could have been seen, so are “observable” defects even if they are not “observed.”

Latent Defects.

Latent defects, on the other hand, are neither easy to find nor to fix.

Latent defects are those that are concealed or otherwise not readily observable. Many times, even a thorough inspection will not reveal a latent defect. Since latent defects aren’t obvious, that usually means they’re below the surface or even a defective system in the guts of a project.

Patent vs. Latent Defects.

To make the difference between the two a bit more clear, let’s look at an example. A patent defect would be something like the builder failing to install an Air Conditioning Unit (“AC”) in the home. The lack of an AC unit is an obvious, or patent defect.  On the other hand, if the contractor installed the AC unit, but never completed the ductwork in the walls, that would be a latent defect. Because the ductwork is hidden behind the walls, vents and grates, it is not obvious, observable or easily discovered.

When a defect in construction causes a dispute, it is important to know what type of defect it is (latent or patent). It is also important to protect your rights.

Helping You With All Your Real Estate Needs.

As real estate attorneys located in Cumming, Georgia, the attorneys at the Law Offices of Mark Weinstein, P.C, have experience in all aspects of real estate, including construction defect litigation. We serve Atlanta and the surrounding counties.  Call us at: 770-888-7707. Or you can contact us here.

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