This is a simple question, with a complex answer. Building defects are among the most common causes of lawsuits and conflicts in the construction industry. Often there is confusion when it comes to defining what a building defect is because of the varying views and desires of those who raise the question and/or make the decision.
Statutory meanings for the word “defect in the building” differ from state to state. The term “construction fault” is typically broader than mere faulty workmanship. A building defect is commonly defined as a fault in design, workmanship, or the materials or systems used in a project resulting in the failure of a building or structure portion and causing damage to individuals or property, typically resulting in financial harm to the owner. The question becomes how do you recognize a building defect, how do contractors defend themselves against this liability, and what do you do when you find a building defect?
DESIGN VS WORKMANSHIP
There are two categories of building defects, those known or readily evident upon known or readily evident upon inspection (patent defects) and that hidden and often not readily visible (latent defects). And even with that distinction, it is important to remember that a building defect and a nuisance allegation arising from a lack of maintenance or normal wear and tear are different. Building defects can range from complex foundations and framing problems that threaten the structural integrity of buildings, issues such as poorly painted surfaces and rotting wood trim around windows and doors are aesthetic.
Construction defects involve defects in both design and workmanship, as described above. Design defects usually arise from the inability of the construction professional to create a detailed and well-coordinated collection of build documents. Default in architecture is generally known as errors or omission, or both. A design error is a mistake in a design feature that the contractor typically finds during construction and that causes any part to be replaced pr redesigned to correct the mistake. A design omission is the result of an incorrect design object or a scope of professional omitted in his or her construction documentation and can be applied to the scope of the contractor by order of modification.
Workmanship defects usually arise from negligence on the part of the contractor to construct a structure or component part of a structure per the building documents. Workmanship failures may involve things like an incorrectly mounted weatherproofing device, improperly designed stucco or exterior wall system, soils not properly compacted, or flashing or lack of lighting design.
STANDARD OF CARE
Architecture, engineering firm, and contractor, the parties with legal responsibility for construction defects are the engineers, the contractor, and other consultants and subcontractors. The owner’s almost always fault-free.
The contractor is responsible for performing the work and building a structure in full accordance with the contract documents, including the design documents. Building contracts have grown from being formal documents initiating the construction process to being the backbone of the building process. That is why ensuring that the construction contract specifies what the contractor wants it to mean is so critical for the contractor.
The requirement allows the contractor to visit the site and familiarise themselves with the local conditions. The contractor is also expected to review the contract documents to plan and promote the construction and conduct the work in compliance with appropriate workmanship requirements within the construction industry. The contractor shall be responsible for the means and methods of construction and shall ensure that the job is free from defects and conforms to the specifications of the building documents. However, it is not the contractor’s duty to ensure that the building documents were prepared in compliance with relevant rules, statues and ordinances. If the contractor does not wish to assume responsibility for design mistakes or omissions, then that principle must be explicitly outlined in the contract.
PREVENTION AND RESOLUTION
Both parties involved in planning and building a project want to avoid flaws in the construction. Implementation of a quality assurance/quality management program is critical for a contractor, as it will help to eliminate faulty work. Implementing this program allows the contractor the ability to repair faulty work before completion of the project, which can mitigate monetary harm to the contractor and shield the contractor from potential litigation.
However, if a design flaw becomes apparent to the contractor a thorough inspection of the structure should be carried out. This will entail a project walk-through to collect as much information as possible and to present that information to the owner so that an informed decision about whether further action is taken can be made. When faced with a building defect, the main aim of the contractor should be to repair the building defect while expending the least amount of money. Since it is not always the most cost-effective option to remove faulty work, it is important to try an innovative approach to correct the defect.