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Laila Khosroabadi: Defects and homeowners' rights

It's the Law

Posted: April 1, 2010 11:08 p.m.
Updated: April 2, 2010 4:55 a.m.
 
Construction defects are deficiencies in a building caused by the failure to comply with plans and specifications, building codes or manufacturer warranties.

Defects can result from shoddy workmanship or intentionally cutting corners in construction.

Unfortunately, hundreds of thousands of unsuspecting homeowners realize their homes suffer from some type of construction defect that will cost thousands of dollars to repair, depreciate the value of their home or possibly force them to leave their home.
The number of construction-defect cases has surged in recent years, because during the housing boom, houses were being constructed in record numbers to meet high demand.

Pricey and commonly occurring construction defects include structural integrity of concrete, carpentry, unstable foundations, expansive soils, water intrusion, poor thermal or moisture protection and defective doors, windows and glass.

There are four types of defects - design deficiencies, material deficiencies, subsurface deficiencies and construction deficiencies.
Design deficiencies occur when a building does not comply with code, material deficiencies include use of an inferior material that can cause premature deterioration.

Construction deficiencies occur when the workmanship is of poor quality and usually results in the most defects.
Subsurface deficiencies are typically caused by expansive-soil conditions, as well as poorly compacted soils, which can result in movement and shifting of the building that can affect the structural integrity of your home.

A homeowner's claim for construction defects are based on his or her contract with the developer. The law requires the party responsible for the defect to remedy the situation.

Simply put, the law imposes an obligation upon the developer, as well as the contractors, to exercise a reasonable degree of skill and knowledge that is used by building professionals.

Moreover, the developer and contractor are responsible for the quality of work performed by subcontractors.

In California, the law also imposes strict liability on the developer and/or contractor. As such, the plaintiff does not have to prove the developer/contractor was negligent in the construction of the home. They have to prove the defendant was involved in the mass production of housing, a defect in the house exists, damages were proximately caused by the defect and the defendant caused or created the defect.

If your home was sold to the original owner after Jan. 1, 2003, then a new set of laws apply. These laws are often referred to as the "fix-it" laws.

Civil code section 895 et seq. establishes procedures and requirements with respect to construction defect cases involving homes and homeowners. Section 910 sets out prelitigation procedures to be followed by the homeowner before a suit can be filed.

The homeowner or his or her legal representative must provide written notice to the builder specifically setting forth each deficiency that constitutes a construction defect.

Upon receiving the notice, the builder must provide the homeowner of written notice of receipt of the claim within 14 days. If the builder elects to inspect the home, they must complete their inspection within 14 days after acknowledgement of receipt of the notice of the claim.

However, if the builder fails to either acknowledge receipt of the notice of the claim or to inspect the house, the homeowner is released from the requirements of the "fix-it" laws and may proceed with the filing of an action.

More importantly, valid claims for major-construction defects may be lost if a homeowner does not act promptly.

The shortest statute of limitations can be three years from the date the homeowner discovered or reasonably should have discovered the defect.

There are other statutes of limitations that may run from the date of completion of the home or possibly the final inspection of the home. If the defect is latent, or not readily apparent by reasonable inspection, any action to recover damages generally must be within 10 years after improvements are substantially completed.

Laila Khosroabadi maintains her practice in the Santa Clarita Valley. She may be reached at (661) 374-2809 or by e-mail at LKHOSR@yahoo.com. Her column reflects her own views and not necessarily those of The Signal. "It's The Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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