Many clients have approached me inquiring about claims they can make against a builder or contractor that performs substandard work. Unfortunately, builders and contractors make mistakes all the time through human error, cutting corners, or hiring the wrong subcontractors for the job. When things go wrong, sometimes the work is not up to par with standards in the industry while other times there are blatant violations of the building, fire, or zoning code. Either way, defective work is very problematic for property owners, particular those who paid significant sums of money and do not get the results they bargained for. What types of claims can you make against a builder or contract who performs shoddy work?
1.Breach of Contract
As a preliminary point, it is a good idea to have a written construction contract with your builder or contractor to protect yourself. There are a number of essential provisions to include in such contract, however it is imperative to make sure the scope is properly defined both in the main body of the contract and by attaching an plans or specifications, if possible. Other important provisions include warranties and requiring the builder to maintain adequate insurance. It is a good idea to review the contract with an experienced attorney to make sure you are protected.
…a written contract will be vital in bringing a breach of contract claim…Edward Schenkel
If there is defective work, a written contract will be vital in bringing a breach of contract claim, so you can claim the work is not in compliance with the contract. If the plans are made a part of the contract, failure to comply with the plans is likely a breach of contract in itself. Similarly, if certain materials are called out, failure to use these materials may be a breach in itself as well. Often, a provision is included requiring the builder or contractor to perform in accordance with industry standards. If there is defective work, arguably there is a breach of this provision as well.
If a builder or contractor performs defective work, you also may be able to bring a negligence claim. You may be able to bring negligence claims against all of the subcontractors that performed the defective work, not just the general contractor. Suing all the subcontractors in a breach of contract claim is more complicated since you likely only have a contract with the general contractor or construction company.
A builder is held to be under a duty to exercise a degree of care…Edward Schenkle
In order to bring a negligence claim, you must show that the builder owed a duty of care, that duty of care was breached by failing to meet the standard of care, and that the breach was a proximate (foreseeable) and direct cause of the damages. A builder is held to be under a duty to exercise a degree of care which a skilled builder of ordinary prudence would have exercised under the same circumstances. Therefore, you will need to prove the hired builder did perform as a builder of ordinary prudence would have performed. At trial, you will likely need to call experts in the industry to demonstrate that your builder did not perform prudently and therefore breached the duty of care.
3.Breach of Warranty
You may also be able to bring breach of warranty claim against your builder for defective work, both express and implied warranted. An express warranty may be included in the contract by a builder in a construction contract, typically by making a representation about the quality of the work and providing a period of time in which the builder will fix any problems at no cost to the client. Often, a builder will provide a warranty that the work is performed in a workmanlike manner, meaning that it is up to industry standards. If the work is not up to industry standards, you may have a claim for breach of express warranty.
…a breach of implied warranty is another claim you may be able to make against a builder…Edward Schenkel
There are also statutes that create implied warranties in new construction contracts. There are four implied warranties in such contracts: (1) an implied warranty that the construction improvement is free from faulty materials; (2) an implied warranty that the construction improvement was constructed according to sound engineering standards; (3) an implied warranty to construct in a workmanlike manner; and (4) an implied warranty of habitability at the time of delivery or the time of completion of an improvement if not completed when deed is delivered. There are certain exceptions, however a breach of implied warranty is another claim you may be able to make against a builder for faulty work in new construction.
If the builder or contractor made a misrepresentation either in the contract or orally to you prior signing, you may also be able to make a claim for misrepresentation. For example, if a contractor represented it would include certain materials in the work performed and did not, this may amount to a claim of misrepresentation. A misrepresentation may also allow you to make another claim under the Connecticut Unfair Trade Practice Act, which allows recovery from businesses that engage in unethical, immoral, and/or unscrupulous conduct.
…you may be entitled to additional damages…Edward Schenkel
As you can see, there a number of different types of claims you should think about if your builder or contractor performed defective work. It is a good idea to think about filing multiple claims in a lawsuit in case one of them fails for one reason or another. Moreover, you may be entitled to additional damages for certain types of claims v. others, which will be discussed in another post.