FREQUENTLY ASKED QUESTIONS

How do I know if a construction defect exists?

Many construction defects are not easily detected by non-experts. However, signs such as window leaks, roof leaks, stained or cracked drywall, ponding, standing water in basements or crawl spaces, soil heave or settlement, cracked foundations, slabs or flatwork, inoperable windows or doors, cracked or settling asphalt, insufficient heating or air conditioning and even electrical problems can be indicative of much larger problems.

What should I do if I discover a defect?

If you find or suspect a construction defect, the best approach is to have it investigated by a professional. McKenzie Rhody will perform a free investigation. The next step is to make sure that the investigations are performed thoroughly by qualified individuals. This usually means an engineer or someone with professional experience in identifying construction defects. Often, a cursory investigation will overlook defects. Finally, always remember that your ability to make a claim is controlled by the statutes of limitations in your state. Once those dates have passed, it will be too late to recover for missed defects.

What are statutes of limitations in Texas and Colorado?

In general, statutes of limitations impose deadlines for bringing suit. Texas and Colorado have different statutes that need to be considered. After the limitation period expires, the lawsuit can no longer be filed. For example, Colorado has two limitation periods: a) a six-year “Statute of Repose” (found at C.R.S. § 13-80-104); and b) a two-year “Statute of Limitations” (found at C.R.S. § 13-80-102). Texas, on the other hand, has a ten-year “Statute of Repose” and a two-year “Statute of Limitations”.

According to the six-year statute, a construction defect lawsuit must be filed within six years of substantial completion (extended two years if the defect is found in the fifth or sixth year). Substantial completion is not defined by statute, however, it is generally considered to be the time a certificate of occupancy is issued for the unit or building in question.

According to the two-year statute, the homeowner or association has two years from when they know, or reasonably should know of the existence of the defect, to file a lawsuit. Thus, the two-year statute may impose a much shorter limitation period than the six-year statute above.

While there are exceptions that may extend each limitation period, homeowners and associations should be extremely careful not to let either statute run as it could be fatal to their ability to bring a claim. For more information, see Defining Substantial Completion in Construction Defect Actions. Return to top

What is arbitration and is it mandatory?

Arbitration is a form of alternative dispute resolution that involves a third-party arbitrator (either an individual or a panel) who decides the outcome of a case after presentation of evidence by both sides. In most circumstances, the decision of the arbitrator is final, and has the same effect as if it were rendered by a judge or jury in a court of law. In addition, absent certain errors, the arbitrator’s decision cannot be appealed.

Many builders attempt to force homeowners and associations to arbitrate construction defect claims based on provisions in documents created by the builder at, or even before the time of sale. However, arbitration is not always mandatory (see Rocky Mountain News article: HOAs claim victory in arbitration case). Also, because arbitration takes away significant rights of homeowners and associations to present their case to a jury, it should only be considered after consultation with an experienced construction defect attorney.

How do I select a construction defect attorney?

A number of factors are important in selecting a construction defect attorney. Here are three to consider:

First, consider experience. Make sure the attorney working on your case has considerable experience handling exactly the type case presented by your situation. For example, while a firm may have experience representing individual homeowners in single-family home class action cases, that firm may not be the best suited to handle multi-unit construction defect cases involving condominiums, townhomes and apartments. Also, ask about trial and arbitration experience, and the firm’s success in settling cases without the need for trial. Finally, be sure to ask for references.

Second, determine which attorney will actually handle your case. In some firms, only one attorney has the experience to properly direct discovery, engage in settlement negotiations, and conduct arbitrations or trials. Often, in firms like this, the attorney with his name in the paper does not have day-to-day involvement with your case, and only gets involved at the last moment. Also, this “principal” attorney may be stretched very thinly, making it difficult for you to have direct contact with that individual, or for him or her to spend significant time on your case. Instead, look for firms where an experienced partner handles your case on a daily basis. That way, you can assure you will get the attention you deserve from the best representation the firm can provide.

Third, interview more than one firm in person. Web sites, ads and press coverage only scratch the surface. Talk to the attorneys face-to-face. That way, you can see how prepared they are concerning your particular needs, get important perspective and better compare the abilities of the attorneys on your list.