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Construction defect liability relies on range of legal theories


A construction defect is just what it sounds like an imperfection in construction. From a simple nail that has popped out, to leaky windows, there are many possible construction defects. While it may be simple to identify a particular construction defect, it can be more complex to hold a contractor liable in construction defect litigation. An Arizona homeowner may hope that when a party does not perform, whether a contractor or subcontractor, that party will be held legally liable and be required to remedy the defect. How this liability is established, and under what theory, may prove to be more complex than simply identifying the defect, however.

Construction defect liability is generally based on one of several theories. Negligence may exist if a contractor has not exercised a reasonable degree of skill, care or knowledge typical of a building professional in his or her field. General contractors and developers have the responsibility to ensure that their subcontractors do not act negligently.

In the event a developer intentionally misrepresents the construction quality of a building, and it is established that the developer intended not to follow the design plans as presented, that developer may be legally liable under a theory of fraud. Similarly, a developer may be liable under a theory of negligent misrepresentation if he or she presented something as fact, but did not have a reasonable basis upon which to make this assertion.

If a builder or developer breaches an obligation included in the purchase contract, he or she may be liable for breach of contract. Similarly, a breach of warranty theory may apply if a builder or developer fails to fulfill the warranties regarding a property's condition.

Whether a builder, developer or contractor can be found to be legally liable for a construction defect can be a complex issue. The facts of each particular construction dispute will be relevant in determining under what theory of liability a party may be responsible. An attorney familiar with real estate law in Arizona may be able to offer guidance in this arena.

Source: FindLaw, "Legal Liability for Construction Defects," accessed June 26, 2015

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