Part I: Potential defenses to construction defect claims

Those of us who have spent a few years in the Mid-Atlantic region know that our part of the country is as litigious as any other – sometimes even more so. People in one aspect or another of the construction industry – real estate developers, general contractors, subcontractors, designers and others – understand that litigation is today a virtually unavoidable part of the business.

That reality makes effective construction defect defense more important than ever. In many situations, there is a relatively straightforward defense available, while in others defense is more complex (though just as effective). Let’s take a quick look at some of the defenses that can be available in different sets of circumstances.

Perhaps the most straightforward of all construction defect defenses is also one of the most effective. It is, quite simply, when someone does not have the legal right to sue a contractor, developer or other project participant. In these situations, a general contractor or subcontractor might have an absolute defense, even when a defect is present.

Take for instance, an apartment building owner who wants to file a breach of contract claim against a general contractor. Typically, that owner will need contract rights. If the property owner purchased the building from the developer after construction was completed (a pretty common occurrence), the general contractor might well have no contract with the apartment building owner, who would in turn have no contract rights (and no breach of contract claim against the contractor to pursue).

Similarly, the general contractor doesn’t typically sign contracts with townhome or condominium associations either. Those associations might have no contract rights in those situations.

We’ll take a look at some more defense options in our next post. Should you have any questions on construction litigation topics, please contact us using the email or telephone contacts found on our website at 

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