When Must I File a Construction Defect Claim?

construction defect attorney San DiegoThe answer depends on the type of construction defect to your property. Under California law there are two different types of defects; (1) patent defects and (2) latent defects.

The first type of defect is a patent defect. A patent defect is an open or obvious defect. The test for a patent defect is whether the defect is discoverable through reasonable inspection by the owner. Reasonable inspection means regular checks by the owner of the house. In the simplest sense, a patent defect is something the owner should discover through regular attentiveness of their home.

Examples of defects that courts have ruled to be patent include:

  • Failure to install a fence around a backyard swimming pool
  • Raised pavement/cracks on a driveway
  • Raised stones used to build an outdoor patio
  • Failure to install a handrail at an adequate height for users
  • Dangerous spacing between guardrails

If your construction defect is ruled to be a patent defect, then you must initiate your lawsuit within four years. This four year period begins upon “substantial completion” of the construction project. Therefore, a lawsuit must be filed within four years of substantial completion. The statute of limitations is meant to encourage homeowners to inspect their property and to allow construction companies to not have to worry about never-ending liability.

The second type of defect is a latent defect. A latent defect is one that is not apparent through reasonable inspection. It is a defect that is hidden and would not be discovered through reasonable inspection or regular attentiveness.

An example of a latent defect is one where the a plumber and a general contractor were found to be liable for the wrongful death associated with the ultimate pneumonia related to the malfunctioning heating and air-conditioning unit. In that case the temperatures in the apartment units fluctuated between 53 degrees and 88 degrees, and an elderly woman contracted pneumonia during one of the cold spells. The defect was latent because no reasonable inspection of her apartment would have led her to discover the malfunctioning system.

In California, a two-step process is undertaken to determine whether a latent construction defect claim is barred by the statute of limitations. Firstly, the action must be filed within three years of discovery. Secondly, in any event, regardless of when the defect was discovered, the action must be filed within ten years of substantial completion of the property.

Thus the statute of limitations is significantly longer for latent defects versus patent defects. However both statutes create a duty for the homeowner to inspect their house or property; and neither period allows for never-ending lawsuits.

If your commercial or residential property was built in a substandard manner, contact the experienced construction defect attorneys at  Martinez & Schill LLP to schedule a free consultation to discuss your construction defect case. We will analyze the circumstances of your case and evaluate the best way to obtain a maximum financial recovery. From offices in San Diego and Riverside, we work with clients throughout Southern California.

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