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Table of Contents:
Constitutes a Defect?
Fast Must I Act?
Defined By Webster's Dictionary
Dictionary defines the word
defect: “de-fect” (de'fekt; also, and for v. always, di fekt') 1. lack of
something necessary for completeness; shortcoming
2. an imperfection; fault; blemish. Another term for “Defect” is “Deficiency”;.
Webster's Dictionary defines the word deficiency. 1. State or quality of being
deficient. 2. A shortage; deficit. Webster's
Dictionary defines the word “Deficient” 1. To be wanting. 2. Lacking in some
quality necessary for completeness; defective. 3. One that is deficient.
Defines “defect” as: “The
want or absence of some legal requisite, deficiency; imperfection;
insufficiency. Galloway v. City
of Winchester, 299 Ky. 87, 184 S.W.2d 890, 892, 893.
The want or absence of something necessary for completeness or
perfection; a lack or absence of something essential to completeness; a
efficiency in something essential to the proper use for the purpose for which a
thing is to be used.” “Latent
Defect: One which is not apparent
to buyer by reasonable observation.” “Patent
Defect: One which is apparent to
buyer on normal observation.”
Code Annotated §16-116-102,
although dealing primarily with products liability defines “Defective
Condition” as a condition of a product that renders it unsafe for
reasonably foreseeable use and consumption.
Arkansas Case Law:
PICKLER and Marilyn PICKLER d/b/a VIKING REALTY & DEVELOPMENT COMPANY v.
John FISHER and Marlene FISHER No. CA 82-192; Court of Appeals of Arkansas; 7 Ark. App.
125; 644 S.W.2d 644; 1983 Ark. App. LEXIS 729
(Regarding Notice and Breach of Implied Warranty of Fitness of a new
WILLIAMS and Chris WILLIAMS v. CHARLES SLOAN, INC. and Charles SLOAN,
No. CA 85-392; Court of Appeals of Arkansas, Division
One; 17 Ark. App. 247; 706 S.W.2d 405; 1986 Ark. App. LEXIS 2132
CONSTRUCTION CO., INC.,
APPELLANT v. ANN SHUMATE, APPELLEE; No. CA 88-410;
Court of Appeals of Arkansas, Division Two; 1989 Ark. App.
LEXIS 348 (damages/ defect)
To read these cases and more Visit the
local law library located in the New Library on the Ouachita
Technical College campus in Malvern, Arkansas.
What Constitiutes a Defect?
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following are some factors commonly used to determine whether a particular
problem constitutes a construction defect:
- Did the builder conduct his work in a “workmanlike” manner,
- The buyer's “reasonable expectations”,
- Were materials and parts used up “to standard” based upon their
reasonable use and the factors listed in (5) below,
- Was all work (preliminary and changes) appropriately approved by
the responsible party and any regulatory authority,
- The compliance or noncompliance with the minimum requirements of
applicable building code(s), local ordinances and/or construction standards,
as established by:
- Federal law
- State law
- County and City
- District, Municipal and private authorities and districts
Classifications of Defects:
Earth Settlement Issues
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is the duty of the primary contractor to complete the work covered by his or her
contract, in accordance with the approved plans and specifications. The
contractor must carefully study the approved plans and specifications and should
plan their schedule of operations well ahead of time.
Once work begins the contractor must be ever vigilant and if work is
being done improperly according to plans and specs he/she should immediately
order to assure that the work being done is in accordance with the approved
plans and specifications, the contractor must provide for and furnish adequate,
experienced, competent supervision, and coordination of all of the work he or
she is contracted to perform.
is a crucial function. The
supervisor of the work being done should not rely on the local building
inspector to catch any of the workers’ mistakes. Rather, inspection must begin
with the site supervisor. It is critical for the supervisor to be thoroughly
knowledgeable of each and every trade that he is supervising. This doesn't
necessarily mean that he/she has to be an expert in all trades, but it does mean
that he/she must be aware of the resources available to him/her to gather
sufficient information to assure that the work is being performed in accordance
with the approved plans and specifications.
It is also the supervisor’s charge to make sure all manufacturer's
recommendations for the use and installation of the material products being used
are followed, and that the work is in conformance with the requirements of the
codes. A supervisor should:
exercise oversite with due diligence,
maintain a sequenced procedure for “Quality Control”,
inventory contents of all deliveries and sub contractor deliveries to be
assured the correct quantity and quality of product is delivered and used in
accordance with plans and specs.,
make sure his/her use of employees and laborers are of the needed quality
for the job being done,
Never substitute materials which are unapproved by an unauthorized
Always follow “Approved” plans and specifications, or obtain “Approval”
for each change to the plans and specifications,
Always follow in great detail, the submittal review process,
Never leave the worksite with out experienced and knowledgeable
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are numerous codes in application that govern construction. The most commonly
applicable is the Uniform Building Code ( UBC ). The UBC has many versions
applied to it, such as the State Building Code Amendments to the UBC.
municipalities have adopted amendments to the UBC, such as the City of Los
Angeles, County of Los Angeles, County of Orange, and many other governing
authorities throughout the state of California. Commonly, the applicable codes
are referred to as “UNIFORM CODES”
Uniform Building Code
Uniform Mechanical Code
Uniform Plumbing Code
Uniform Fire Code
Uniform Housing Code
Uniform Code for the Abatement of Dangerous Buildings
Uniform Sign Code
Uniform Administrative Code
Uniform Building Security Code
Uniform Code for Building Conservation
Uniform Zoning Code
addition to the Uniform Codes, as described above, the National Electrical Code
( NEC ), may also be applicable to the issues.
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Take time up front before you secure a contractor to talk
with other’s who you know and don’t know who have built improvements and get
their view of how pleased they are with the work done and the ability to
communicate effectively with their contractor.
Interview contractors as best you can.
Be tactful and ask for addresses of some of their past and present
building sites. Taking time up
front to make sure your contractor’s work ethic, personality, financial
ability and technical abilities
mesh with your needs is invaluable in finalizing your relationship.
Establish guidelines for progress reports and draws on the
payment schedule. Establish a
calendar for certain stages of work to be completed and inspected by you or your
authorized representative. (“Don’t
authorize the contractor or his sub as your agent.”) Review the products that your contractor plans to use.
It may be that you wish to upgrade materials, if so now is the time to do
that while you are still in the “bid stage”, but be prepared that you may
well increase the overall cost of the project.
Nonetheless, it is usually better to make these changes prior to setting
the final bid. Remember your
contractor makes his living from the bid price and your later changes and
modifications must be translated into extra cost to you, otherwise he would not
be able to stay in business. At
this stage you should establish a finish date and for a “final walk thru”
and check the “punch list” to make sure everything reasonably complies with
your agreement. It may also be
beneficial to establish a bonus when the job is completed ahead of schedule. This can be a two edged sword if a bonus is too large it
could feasibly encourage a builder to cut corners so he can finish early.
Likewise, you may wish to establish and agreed penalty for completion
behind schedule. When satisfied
make sure all of your notes and agreements are reduced to writing.
There are “standard” contracts and your builder probably has his own
with fill in the blanks for details. Unless
you have been thru this process before you should make sure you understand the
writing; it will be a legal instrument with binding effect.
If the contract is the builder’s standard contract or if you do not
understand or are unsure of any terms, consult your attorney.
You may find it most beneficial to consult an attorney who has dealt with
contracts, construction law and the construction industry.
Once the contract is made visit your jobsite often.
Be there from the first day when the foundation is being laid off.
At times construction will be fast paced and at other times you may feel
nothing is going on, but be assured that you should visit in my opinion daily
even on slow days and otherwise as often as you can.
Find out when certain stages of work will occur and try to inspect for
compliance to your general plan. “But
remember you have hired a person to do the job for you based upon your plans and
drawings, as long as the person is doing his/her job let them do it.
After all, that is why you are paying them!”
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of the most common mistakes during discovery is the citation and utilization of
the wrong code(s), or the incorrect edition of the code, by the litigants.
Common practice by the writers of the codes (such as ICBO for the Uniform Codes)
is to publish a new edition every three years, with the governing authorities
being required by the state to adopt the new edition every three years,
if a project was constructed in 1996, the applicable codes might not necessarily
be the same in the1999 edition.
on the other hand, are regulations, which are adopted by the local governing
authority. Local ordinances may vary from the codes.
The governing board may adopt or modify specific sections of code to
apply to a specific application, manner or situation, other than for which it
was originally intended. Therefore, when in discovery, it is important for the
litigants not to overlook local ordinances.
discovery may include:
Original Drawings and Specifications
Architects' or Engineers' Communications
Construction Correction Notices, etc.
Construction Schedules and Revised Updates
Contracts with the Prime and Sub contractors
Correspondence and Memorandums
Field Notes by the Architect and Consulting Engineers
Meeting Notes or Meeting Minutes
Reports, manufacturer, percolation, soil, etc.
Requests for Information and Answers
Revision Sketches and Drawings
Submittals and Shop Drawings
Fast Must I Act?
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Arkansas Code Annotated §16-56-112 provides the
among other things the statutory time limits for bringing an action in contract
for design, planning, supervision, repair and related matters.
Part (a) provides the following:
“No action in contract, whether oral or written, sealed or unsealed, to
recover damages caused by any deficiency in the design, planning, supervision,
or observation of construction or the construction and repair of any improvement
to real property or for injury to real or personal property caused by such
deficiency, shall be brought against any person performing or furnishing the
design, planning supervision, or observation of construction or the construction
or repair of the improvement more than five (5) years after substantial
completion of the improvement.” “Persons”
are defined in Part (g) as an individual, corporation, partnership,
unincorporated organization, or any other business association.
Part (c) provides that the limitations set forth shall also
apply to any action for damages caused by deficiency in surveying, establishing
or making the boundaries of real property, the preparation of maps, or the
performance of any other engineering or architectural work upon real property or
improvements to real property.
Part (d) provides that in the event of fraudulent
concealment of the deficiency the limitations shall not apply.
Part (e) moreover provides that if a person furnishes plans or designs,
which are not used within three (3) years of from the date they are furnished,
no action shall like against that person for deficiency in the designs or plans.
As with most law other case law and statutory law and regulations may
effect the prosecution of an action so it is best to consult an attorney
regarding the specific facts and circumstances of your situation.
information is not a substitute for the advice of a qualified lawyer knowing the
particular aspects of your case. It
is intended only to provide general guidance to legal rights in the areas
discussed. For more assistance, contact the lawyer of your choice.
Malcolm L. Rigsby
120 W. 2nd Street