David William Jordan

Attorney & Counselor at Law

Home Construction, The Leading Clause of Divorce


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Well, maybe home construction is not the leading cause of divorce, but it can be, and often does lead to enormous tension, disappointment, anger and lawsuits.  Building or remodeling a home is a very personal and emotional event.  It is also expensive and, therefore, is the cause of many disagreements leading to lawsuits.

Under New Hampshire law, buyers can assume that properties they purchase will be constructed in a "good and workmanlike" manner, that homes will be "reasonably fit" for their intended purpose, and that houses will be "habitable."  This is a warranty and it applies to subsequent buyers.

The problem comes with the interpretation of what is built in a "good and workmanlike" manner.  Consequently, when the expectations of the buyer and builder differ, there is often a lawsuit.

The First Question to Ask is What is a Construction Defect

A construction defect, as defined by law, is a "failure of the building or any building component to be erected in a reasonably workmanlike manner or to perform in the manner intended by the manufacturer or reasonably expected actions by the buyer, which proximately causes damage to the structure."

These defects can be the result of design error by the architect, a manufacturing flaw, improper use of materials, lack of adherence to the blueprint by the contractor or a combination of any of the three.

Proving a Defect

Before you run to an attorney, consider some of the factors that a court would look at to determine whether a particular problem constitutes a construction defect:

  1. The buyer's "reasonable expectation."

  2. The compliance or noncompliance with the minimum requirements of applicable building code(s) and/or construction standards, as established by:

    • the Uniform Codes for health and safety that all states have adopted;

    • the building product manufacturer's installation recommendations and specifications;

    • the "approved" construction plans and specifications for the project;

    • the "accepted" customs and practices pertaining to the proper use of building materials and quality of workmanship; and

    • the local ordinances.

  3. Whether the construction was performed in a workmanlike manner.

  4. Whether materials and building products used were suitable for their intended purposes.

  5. Whether or not the design intent of the project architect, the structural and other consulting engineers were adhered to.

  6. Whether there was any premature deterioration of the building materials.

  7. Whether or not the original project's plans and subsequent changes were checked and approved by the building department.

Here are ten ways you can evaluate the professionalism of your contractor:

  1. Do you have a detailed written contract and a working set of plans?

  2. Does he and his workers respond and show up to work on time every day?

  3. Is there a system in place that checks the contents of all sub-bids to make sure they comply with not only quantities, but also with the requirements of the approved plans and specifications?  This avoids finger pointing.

  4. Make sure that the general contractor is added as an "additional insured" to the subcontractors' general liability policy.  Request a certificate of insurance that verifies that.

  5. Ask the general contractor about the financial strength of his subcontractors. A subcontractor that is out of business at the time a claim is filed is of little help to anyone.

  6. Make sure your contract specifies exactly what building materials are to be used.

  7. Make sure that every change from the original contract be made as a written change order.  The single most important document that you could have to avoid defects litigation may very well be a good set of working drawings.

  8. Make sure that the general contractor provides constant and thorough inspection of the work.

  9. Hold back at least 10% of the final payment until there is an extensive "walk through" with the general contractor before closing.  Make sure that the general contractor explains to you how any further questions or concerns are to be handled.

  10. A good contractor won't abandon you after closing.  You should be provided with detailed information on the care and maintenance of your home, including information on the products used in the construction of the home, information on the warranties that accompany the products, and names and phone numbers of all the subcontractors involved in the construction of the home.
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