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The Hidden Defects Lurking in Many Commercial Buildings

Many building owners may have been thinking about construction defects over the summer after the condo collapse in Surfside, Florida. The tragic collapse of the Champlain Towers South killed 98 people and set off a frantic search-and-rescue effort amid the rubble and debris that lasted for 14 days. A 2018 structural survey of the 15-story condo said waterproofing below the pool deck was causing significant structural damage to the concrete slab below the area. Investigation into the exact causes of the building collapse is still ongoing, and the legal and regulatory fallout from such a momentous disaster has only just begun.

The Surfside condo collapse is the stuff of nightmares for property owners. It’s also an extreme example of the consequences of construction defects. Construction defects rarely cause entire buildings to collapse, but they can lead to a host of other migraine-inducing problems for property owners, such as expensive and lengthy litigation and costly repairs. These defects can be obvious or they may lurk within a building for years before being detected. And due to complex statute of limitation laws that vary in each state and local jurisdiction, whether or not property owners can successfully compel a building contractor to fix them depends on how early they’re spotted.

The most common construction defects are categorized as design, material, and workmanship. Design defects happen when the architect or building designer makes an error or omits something in the design plans. If a design defect is found after the building project is completed, the only recourse for property managers is often a construction defect lawsuit. Building owners can be proactive by identifying design defects early in the building process. If errors are found, they’ll generally require a redesigning of some component parts. Design defects can also possibly be fixed by adding to the project’s scope of work or through change orders. Constant communication with the construction team can catch these mistakes early.

Material defects are usually blamed on the manufacturer of inferior building materials, but they are less common. These defects often lead to costly repairs and the need to source new materials. Oftentimes, material defects aren’t discovered until they’re already incorporated into the finished construction project, which makes them costlier to fix. A good way to prevent material defects is to ensure building materials are tested before being utilized in a project. Professional committees and independent testing laboratories should put materials through a process of reviews.

Finally, workmanship defects are the most common of all, and they refer to large structural problems or more minor design problems. They often happen when the contractor cuts corners, failing to complete the building project according to code requirements, approved plans, or standards of care. Fixing workmanship defects when they’re spotted can be tricky because if repairs are made and litigation happens down the road, a repair of a defect, even in good faith, could be considered ‘spoilation of evidence.’ If you spot a workmanship defect early, contractors may have to go through a specific process to lower their liability, such as notifying all subcontractors who may be responsible, inspecting the defect and taking photographic evidence, and asking for expert opinions regarding the defect. Remedies for workmanship defects will vary depending on their impact. Property owners usually have several options, including having someone fix the defect and then pursuing a legal claim for the cost of the repairs.

Tyler Berding is the Founding Partner of Berding & Weil LLP, a construction defect and common interest development law firm in California, and he said most construction defects develop over long periods in a “glacially slow” manner. “If you catch a defect early enough in the building’s lifespan, before rot or other deterioration sets in, fixing a problem is relatively inexpensive,” Berding said. “But if you wait and don’t know that a defect is developing, it’s possible you’ll have to replace entire building systems.”

Berding said that low-rise, wood-framed condominiums and apartments have long been susceptible to construction mistakes, leading to legal disputes with contractors and developers. High-rise buildings are also vulnerable to these defects, and an entire industry of law firms has developed that handles construction-defect litigation. Berding added that some of the causes of construction defects are often a shortage of skilled labor in times of high real estate prices and demand. Builders become eager to capitalize on a hot real estate market, but good construction takes time and talented workers. With time and talent in short supply, mistakes in a building’s construction can add up.

With the widespread shortage of skilled construction workers happening across the nation, property owners and developers should be especially on the lookout for defects in new building projects right now. Another significant factor could be the supply chain issues that have hindered contractors from getting needed materials. Berding stressed that property owners must be vigilant about spotting and detecting construction defects early, and he said there are a variety of ways they can do this with technology.

“Use an infrared camera and photograph the outer skin of a building maybe shortly after a rainstorm,” Berding said. “The camera will let a property owner see patterns under the skin of the building, as different colors show up that suggest where moisture might be leaking into the building.”

Building owners can also use borescopes, an optical instrument designed to do visual inspections of difficult-to-reach areas. Berding explained this is usually done by drilling a tiny hole in the envelope of a building and then looking inside to see if there’s water intrusion. Rigid or flexible borescopes are usually linked to a photography or videography device. These instruments are commonly used in the visual inspection of aircraft, industrial gas turbines, steam engines, and truck engines, but they’re handy in property inspections, too.

Borescopes and infrared cameras help detect the most common construction defect, the facade leak. Facades are complex architectural elements to build, so they’re more likely to have construction mistakes. Facade elements that fail can lead to serious water infiltration problems that can become difficult to identify and repair. If a facade is constructed incorrectly, the water infiltration can cause mold growth, rust, and structural issues. Once issues are spotted, property owners can seal the substrate gaps to ensure the building is watertight. Leaks around windows are also common, hurting a building’s envelope and leading to higher energy bills. And while roofs are rarely installed incorrectly, any mistakes can lead to water buildups, leaks, and structural damage.

Depending on when the defects are spotted, you may not be able to get the building contractor to pay for the fixes. Many states impose time limits on construction defect claims, and the time limits begin to run when the defect is discovered or “should have been discovered by a reasonable person.” Construction defect litigation is incredibly complex, and it often involves multiple parties, including contractors, builders, insurance companies, and many arcane legal theories.

Most construction defects won’t cause something on the magnitude of the Surfside condo collapse, which is a nightmare scenario for any property owner. But construction defects should be taken with the utmost seriousness from the building stage of a project to after it’s completed and occupied. Taking a proactive approach to identifying defects can prevent many headaches down the road. The use of tech like borescopes and infrared cameras can assist in finding the defects like water intrusion in building facades that often lay dormant and avoid easy detection. As Berding said, construction defects can develop slowly, so the sooner you look for them, the better.

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