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Defenses to a Construction Defect Claim

Contractors get complaints from clients all the time, regardless of how great their work turned out… timeframes aren’t followed, the quality of the work isn’t good enough, work isn’t what the client expected, etc. Because of this, construction professionals should always be aware or the defenses available to them in the event of a client complain. Below are the types of defenses contractors and subcontractors can typically use in the event of a construction deficit claim.

Defenses for a Construction Defense Claim

  1. Spearin Doctrine

If you have built in accordance to the design approved by the owner, you can not be held at fault for the client’s disapproval. Unfortunately, this defense is not always available to contractors who take responsibility for the design themselves. Good control over construction drawings, specifications, change orders, RFI answers and submittals can minimize disputes.

  1. Betterment Doctrine

If the construction or repairs includes elements requested by the owner that were not in the original design, you are not responsible for the issue. The betterment doctrine recognizes that it is unfair for the owner to use these additional elements as part of a damage claim when the owner would have had to pay up front for the omitted elements.

  1. Discharge by Prior Material Breach

If the owner fails to make payments in time with what was stated in the contract, they may not have the ability to file a defense claim against you. This is especially true when the late payments lead to delays in phases of the project.

  1. Spoliation of Evidence

The owner must have evidence of the defective work and document it before hiring a new contractor to come in and fix it. If the owner repairs the work before filing the claim and does not have any proof of the damages or unsatisfactory work, they will not have a case against you.


Photo courtesy of Josh Sorenson by Pexels