Construction Defect Claims - The Basics

If you have purchased or rented property, you may find - whether now or in the future - defective conditions related to the construction of said property. For example, you might encounter foundational fissures, roofing/deck systems that allow water to pass through, windows with trim issues, excessively stressed load-bearing elements, and a multitude of other construction defects. Assuming that you find a material defect on or related to your property, you may be able to assert a legitimate California construction defect claim.

California Civil Code section 896 highlights all certain defects due to fault construction, design, surveying, planning, supervision, and testing, but allows for non-standard construction defects so long as the defect causes actual property damage.

Construction defects are not always obvious. It is quite common for renters and purchasers to discover material defects years down the line, long after they have invested their lives into the property. Families are especially damaged by the presence of significant construction defects, as relocation may not be a feasible option. Children may be enrolled in the local school district, parents may work nearby, their social lives may be built up in the area - in many different ways, the presence of significant construction defects can cause extensive suffering and damage to the property occupiers.

Getting Started Making a Claim

If you believe that you may have a construction defect claim, you'll want to consider the following in order to maximize your chances for success in litigation.

Hire a Qualified Real Estate Attorney ASAP

It's important to hire an experienced real estate attorney as soon as possible after you discover the construction defect. Not only will you need to file a lawsuit within the applicable statute of limitations period (so as to avoid relinquishing your right to sue), but you'll also need to conduct early evidence gathering and case analysis. Also, with the help of your attorney, you can hire a construction expert to investigate the purported construction defect and make a determination as to its severity.

Target All Responsible Parties

Though your primary target in the lawsuit is likely to be the property owner or developer (the person who was in possession of the property at the time of creation for the construction defect), you will want to bring in the construction contractors as well, if it is feasible. Depending on the circumstances of your construction defect case, you may have different claims against each party.

For example, you might assert that the property developer failed to properly supervise the contractors, leading to a construction defect. Correspondingly, you might assert that the contractors negligently built certain items such that a defect was created.

Though going after multiple parties entails a bit of extra administrative difficulty, it's important to file your lawsuit against all potentially responsible parties.

You Do Not Have to be the Owner

Construction defect claims do not solely belong to property owners. In fact, a renter may legitimately assert a construction defect claim, and further, may even assert such defect claim against the original owner, if the owner subcontracted out the construction and failed to properly supervise.

Damages Will Vary Substantially

The damages for construction defect claims can vary considerably depending on the nature of the defect at-issue, the severity of the defect, and the material effect of the defect on the property. Damages frequently consist of claims for the repair costs (including subsequent fix-ups), relocation expenses, lost income of the business (in situations involving a commercial property), expenses for hiring a construction expert to investigate the defects, and other related fees and costs.

Types of Construction Defect Claims

In California, there are primarily four types of construction defect claims.

Breach of Contract

In a breach of contract claim, the property owner sues the construction contractor for failing to properly fulfill the terms of the contract (by creating a defect).

Negligent Construction

Renters, subsequent owners, and original owners can all bring a negligent construction claim. Fundamentally, a negligent construction claim asserts that the construction work was handled negligently and failed to meet the reasonable care standard expected in the construction industry.

Misrepresentation and Fraud

In the event that a contractor (or the property seller/owner) misrepresented or lied about the quality of the work or the existence of the defect, then the plaintiff can sue on the basis of such misrepresentation. Depending on the severity of the defect, it is possible that the court may allow for punitive damages, which can escalate the total damages reward substantially.


Construction defect claims can be complicated, especially if they involve a hostile property owner or slippery contractors. For a free consultation with an experienced real estate attorney who has handled numerous construction defect claims, call the Law Offices of Brian O' Grady at (650) 318-6131 to set up your appointment today.