Defenses to a Construction Defect Claim

The are several defenses available to contractors who are accused of a construction defect. These claims can take the form of breach of contract claims, breach of warranties, or negligence claims. Each type of claim has unique requirements and defenses.

The Right to Repair Construction Defects

A.R.S. § 12-1363 provides notice requirements for purchasers who have identified a construction defect in their dwelling. A homeowner cannot file a lawsuit for a construction defect claim without first complying with these notice requirements. The Arizona legislature is attempting to reduce lawsuits by giving the contractor or developer the right to repair the defect before they are taken to court.

First, the statue requires that the homeowner sends a certified letter to the builder notifying them of the defect. The builder has 60 days to respond. The builder can either dispute the presence of any construction defects, or inform the homeowner that they intend to repair the defect.

The builder must complete the repairs in a reasonable time, and with reasonable care. If, after the builder has had a chance to repair the defects, the homeowner remains dissatisfied and still wants to file a lawsuit for a construction defect claim, they may so.

However, if the homeowner fails to comply with the statute, and does not give the builder the right to repair, their lawsuit may be dismissed.

Claims Barred By Statute of Limitations

Claims may be dismissed if they are brought after the statute of limitations has expired. As discussed in a previous post, limitation periods vary depending on the claim.

Specific Defense for Breach of Contract and Negligence

For a breach of contract claim, the main substantive defense is often that the contract did not specify precisely what the homeowner is alleging. The contract will obviously be the most important piece of evidence in these cases, but other communications between the homeowner and builder may provide details that further strengthen a builder’s defense.

Negligence claims can be more difficult.  They are often barred under the Economic Loss Doctrine. The builder’s breach of duty must have caused either physical harm or personal property loss in order to succeed. Mere reduction in value to the real property will not suffice for a negligence claim.  That type of damage must be pursued under contract theory, which effectively eliminates many negligence claims for construction defects.

Chernoff Law handles business and real estate litigation matters, including defending builders in construction defect claims. Contact us to discuss your case with an experienced real estate attorney.

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