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Construction Defects?

            Table of Contents:

·         Defect Defined

·         What Constitutes a Defect?

·         Contractor’s Responsibilities

·         Building Standards

·         Your Duty

·         Litigation

·         How Fast Must I Act?

·         Disclaimer

·         Sources



Defect Defined By Webster's Dictionary


Webster's 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.


Black’s Law Dictionary   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.”


Arkansas Law Definition


  1. Arkansas 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.


2.   Arkansas Case Law:

       (a)        Roger 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 construction)

       (b)        Allen WILLIAMS and Chris WILLIAMS v. CHARLES SLOAN, INC. and Charles SLOAN, Individually

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  (Regarding Damages)


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.  501/332-3658



What Constitiutes a Defect?   

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The following are some factors commonly used to determine whether a particular problem constitutes a construction defect:

  1. Did the builder conduct his work in a “workmanlike” manner,
  2. The buyer's “reasonable expectations”,
  3. Were materials and parts used up “to standard” based upon their reasonable use and the factors listed in (5) below,
  4. Was all work (preliminary and changes) appropriately approved by the responsible party and any regulatory authority,
  5. The compliance or noncompliance with the minimum requirements of applicable building code(s), local ordinances and/or construction standards, as established by:
    1. Federal law
    2. State law
    3. County and City
    4. District, Municipal and private authorities and districts
    5. Restrictions.


Typical Classifications of Defects:

·        Design Issues

·        Construction and Workmanship Issues

·        Landslide or Earth Settlement Issues



Contractor's Responsibilities

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It 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 make corrections.


In 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. 


Inspection 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:


1.  exercise oversite with due diligence,

2.  maintain a sequenced procedure for “Quality Control”,

3.  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.,

4.  make sure his/her use of employees and laborers are of the needed quality for the job being done,

5.  Never substitute materials which are unapproved by an unauthorized procedure.

6.  Always follow “Approved” plans and specifications, or obtain “Approval” for each change to the plans and specifications,

7.  Always follow in great detail, the submittal review process,

8.  Never leave the worksite with out experienced and knowledgeable supervision.


Building Standards

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There 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.


Many 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”

1.  Uniform Building Code

2.  Uniform Mechanical Code

3.  Uniform Plumbing Code

4.  Uniform Fire Code

5.  Uniform Housing Code

6.  Uniform Code for the Abatement of Dangerous Buildings

7.  Uniform Sign Code

8.  Uniform Administrative Code

9.  Uniform Building Security Code

10. Uniform Code for Building Conservation

11. Uniform Zoning Code


In addition to the Uniform Codes, as described above, the National Electrical Code ( NEC ), may also be applicable to the issues.


Your Duty

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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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One 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, following publication.


Therefore, if a project was constructed in 1996, the applicable codes might not necessarily be the same in the1999 edition.


Ordinances 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.


Other discovery may include:

1.  Original Drawings and Specifications

2.  Change Orders

3.  Architects' or Engineers' Communications

4.  Construction Correction Notices, etc.

5.  Construction Schedules and Revised Updates

6.  Contracts with the Prime and Sub contractors

7.  Correspondence and Memorandums

8.  Field Notes by the Architect and Consulting Engineers

9.  Logs

10. Meeting Notes or Meeting Minutes

11. Reports, manufacturer, percolation, soil, etc.

12. Requests for Information and Answers

13. Revision Sketches and Drawings

14. Submittals and Shop Drawings

15. Other Drawings


How 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.


Disclaimer:  This 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.


Rigsby Law Office

Malcolm L. Rigsby

120 W. 2nd Street

Malvern, Arkansas 72104



Arkansas Code of 1987 Annotated

The MP Group Construction Consultants and Expert Witnesses

The Bluebook, Building Construction

The American Institute of Architects

The American Bar Association

The Arkansas Bar Association

The Texas State Bar

The Texas Real Estate Center/ Texas A&M University

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Last modified: July 29, 2002 06:51:09 PM