The House That Jack Built: An Overview of Construction Defects

Real Estate Law

In recent years, there has been a rise in the number of construction defect claims associated with many condominium projects. In today’s post we will touch on some of the more important aspects of a construction defect case.

What is Construction Defect?

Construction defect claims can arise out of a number of things like damage to property or property use encumbrances or even personal injury allegedly caused by the negligent design or construction of an improvement to property. But some of the most common construction defect claims are for negligent construction of a building or portion of a building.

Negligent Construction

Negligent construction is frequently the primary cause of action for damages in a construction defect case. A negligent construction claim is independent of any breach of contract claim. This means that the issue of whether the work performed by the developer, builder or subcontractor was performed negligently depends not on the terms of the contract itself, but on whether or not the work complies with industry standards.

The standard of care applied in a construction case is a “reasonable degree of care, skill and ability, which is ordinarily employed by others in the same profession.”

Negligent construction claims arise in tort, not contract. As a result, a claim for negligent construction exists independently of any breach of contract claim a plaintiff (i.e., homeowner or condominium association) may have.

Negligence Causes of Action

Because the cause of action is one for negligence, the aggrieved plaintiff must establish all of the traditional negligence elements:

  • Duty
  • Breach
  • Causation, and
  • Damages.

Expert testimony will be required to establish the standard of care that applied to the defendant builder and his breach of that standard of care.

Construction defect litigation cases can involve a number of defendants and can be both complicated and expensive to investigate and litigate. Damages are meant to place the plaintiff in the same position he would have been in had the injury never occurred.  In construction defect cases this generally includes a cost of repair, which must be reasonable and bear some proportion to the injury sustained.

Handling all Your Real Estate Legal Needs

At the Law Offices of Mark Weinstein, we handle all types of real estate cases, and have done so since 2001. If you have a real estate problem, we can help craft a solution. We have offices in Cumming, Georgia. We serve Atlanta and a number of the surrounding counties. To schedule your free phone consultation, call us at: 770-888-7707 or e-mail your inquiries to

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