Take this common situation – your home has cracks in the walls, doors that stick, open on their own, windows that are racked and that cannot be opened, etc. Logically, you contact the builder and submit a warranty claim regarding these issues. The builder tells you that the cracks, sticking doors, etc. are “normal”, or contends that these issues are due to factors under your control – “over-watering”, “under-watering”, etc. The builder offers to patch over the cracks in the walls, shave doors, etc. The same or more cracks then reappear later, as do the sticking doors and other similar problems that you previously experienced. You contact the builder and submit a another warranty claim, and the builder tells you once again that these issues are due to “normal” movement, that all foundations move, etc. Once again, the builder offers to perform only inexpensive cosmetic repairs – patching over the cracks, etc. Not surprisingly, after this second repair, the same or similar problems appear once again. By this point, you may begin to question the accuracy of the builder’s statements to you. You also need to be concerned about another issue – a technical defense called the statute of limitations.
Lawyers speak in terms of “causes of action” – these are legal theories (i.e. negligence, breach of contract, misrepresentation, fraud, etc.) to which lawyers “pigeon-hole” a set of facts. Legal theories have statutes of limitations that attach to them – these are finite periods of time by which you must file your claim or lawsuit or you will be barred, irrespective of how good a case you have. For example, if you are involved in a car accident, you have two years from the day of the accident to file a negligence claim – if you fail to do so, even if you have incurred over a million dollars in medical expenses, you may be barred from recovering because you waited too long to bring your claim.
Most of the legal claims that an attorney acting on your behalf may want to pursue are governed by either the two or four year statute of limitations. In some situations, the “discovery rule” delays the commencement of the particular limitations period – the discovery rule in some situations states that the limitations does not begin until the homeowner knew or should have known they had an issue. Other exceptions may also delay the commencement of a particular limitations period.
Additional factors associated with delay may come into play. Psychologically, the longer time goes by the more likely it is that the builder will either refuse to do repairs, or shorten the list of repairs that it is willing to do. This may be due in part to human nature – the more time that expires between the time that you provided the builder a benefit – your purchase of the home – the more entitled the builder may feel in refusing to perform repairs or deal with you in a meaningful way.
In addition, at some point the builder may allege that your claim is “out of warranty” –that the issue is now beyond any applicable warranty period. Some builders may even take the position that, even though an issue has been a continual and ongoing problem, and unsatisfactory “repairs” were made by the builder within an applicable warranty period, nonetheless your issue is now “out of warranty”.
So what to do – the bottom line is if you believe you have a significant issue, you need to seek the advise of a construction defect attorney regarding your particular situation as soon as possible, irrespective of what the builder is telling you, and its attempts to perform cosmetic repairs. Delaying seeking legal advice may ultimately expose you to technical defenses – the expiration of the statute of limitations or applicable warranty periods.