CONSTRUCTION DEFECT

A construction defect is generally defined as a defect in the design, the workmanship, and/or in the materials or systems used on a project that results in a failure of a component part of a building or structure and causes damage to person or property, usually resulting in financial harm to the owner. Construction defects are one of the most common causes of disputes and litigation in the construction industry. There is often disagreement when it comes to identifying what a construction defect is because of the differing viewpoints and interests of those asking the question and/or making the determination.

Common Cracks in Building

 

 Statutory definitions for the term “construction defect” vary from state to state. Generally speaking, the term “construction defect” is broader than just defective workmanship. A construction defect is generally defined as a defect in the design, the workmanship, and/or in the materials or systems used on a project that results in a failure of a component part of a building or structure and causes damage to person or property, usually resulting in financial harm to the owner. The question becomes how do you identify a construction defect, how do contractors protect themselves from this liability, and what do you do when you discover a construction defect?

 

Defects according to Harris (2006) are faults that may reduce the durability, usefulness, or strength of a construction work. They are the unacceptable quality of a project which can be identified and remedied. Atkinson (1999) defines defective construction works as those which fell short of complying with the specific descriptions or requirements of the contract, especially any drawings or specifications, together with any implied terms and conditions as to its quality, workmanship, durability, aesthetics, performance or design.

 

More importantly, in considering 'defects' as a matter of principle, work may be defective even if it has been carried out with all due skill and care but it fails to satisfy or meet a particular specification. For example, brickwork may be erected correctly but the wrong type or colour of brick could have been used in breach of planning permission (Outlaw, 2011).

 

A construction defect, as defined by California Jury Instructions and cited by Pole (1997) is the: "failure of the building or any building component to be erected in a reasonably workmanlike manner or to perform in the manner intended by the manufacturer or reasonably expected by the buyer, which proximately causes damage to the structure."

 

Furthermore, the California State Assembly Bill, AB 2959, as cited in Pole (1997) stated that a construction defect would result from:

1.      Defective building materials or components;

2.      A violation of Building Codes at the time of construction;

3.      Failure to meet professional standards for design at the time plans was approved;

4.      Failure to build according to accepted trade standards for good and workmanlike construction.

Finally, the researchers’ opinion is that: construction defects refer to those flaws in the physical structure of a building that may occur in any element of the building and interferes with the aesthetics, durability and structural stability of the building. They include cracked walls, sloping floors, poor finishing, uneven staircase threads and risers, beams and columns that are not perfectly horizontal or vertical, and the likes.

 

     CLASSIFICATION OF DEFECTIVE WORKS

Defective construction works can be classified as follows:

1.      Qualitative Defects: According to Kevin (2008, p. 2), qualitative defects can be categorized in various ways, including:

a.       Work (including design) or materials not of acceptable quality

b.      Work (including design) or materials that are in themselves of acceptable quality, but which nonetheless do not conform with the specification or the design brief; and

3. Work that is incomplete.

2.      Patent and Latent Defects: Defects, whatever their qualitative nature can be patent or latent. “The fact that there may be different consequences means that it is important to be able to decide when a defect is patent or latent” (Barrett, 2008, p3). A patent defect is one that is detectable either at or before apparent practical completion or during the defects liability period. By contract, a latent defect is one which has been concealed in the works and may not become apparent for many years.

The terms latent and patent are opposites. A patent defect is discoverable and may be open to view, exposed, manifest, evident or obvious. A latent defect will exist before it is discovered as hidden or concealed flaws in the work. When a latent defect becomes manifest it ceases to be a latent defect and becomes patent. At the moment a latent defect becomes patent the mechanisms under contract for dealing with latent defects are usually relevant.

           CAUSES OF CONSTRUCTION DEFECTS

Construction defects are caused by underlying problems and not necessarily from a single effect e.g. a crack in a concrete floor could be a symptom of maybe foundation movement or inefficient workmanship or poor design of concrete mix. Defects occur when the building structure experiences an improper condition leading to failures or low performance and utilization of the building. As a result it does not only affect the building aesthetically but users safety may sometimes be required (Che-Ani et al., 2011).

 

There are two types of construction defects - those that are known or readily obvious upon inspection (patent defects) and those that are concealed and are often not readily observable (latent defects). However, even with this distinction, it is important to note that there is a difference between a construction defect and a nuisance claim resulting from lack of maintenance or normal wear and tear. Construction defects can range from complex foundation and framing issues, which threaten the structural integrity of buildings, to aesthetic issues, such as improperly painted surfaces and deteriorating wood trim around windows and doors.

 

As mentioned above, construction defects include both design and workmanship defects. Design defects typically result from the design professional’s failure to produce an accurate and well-coordinated set of construction documents. Design defects are usually categorized as an error or omission or both. A design error is a mistake in a design element usually discovered by the contractor during construction and that requires replacement or redesign of some component to correct the error. A design omission results from an incorrect design item or a scope of work that was missed by the design professional in his or her construction documents and may be added to the contractor’s scope by change order.

 

Workmanship defects typically result from the contractor’s failure to build a structure or component part of a structure per the construction documents. Workmanship defects may include items such as an improperly installed weatherproofing system, improperly installed stucco or EIFS exterior wall system, soils that were not properly compacted, or improperly installed flashing or a lack of flashing.

 

There are four main causes of building defects. These are

i.        Inadequacies in design,

ii.      Lack of inspection

iii.    Making use of inexperienced/unqualified inspectors

iv.    Inaccurate measurement.

v.      Improper construction of cold joint.

vi.    Stripping framework too early.

vii.  defects resulting from the wrong selection of materials.

However, defects that are identified in existing properties or buildings have arisen through wear and tear because of lack of adequate maintenance (Gatlin, 2013).