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Common legal theories in construction litigation

A property owner who claims that the builder or a subcontractor is responsible for a problem with the building has several possible legal theories upon which to base their lawsuit. Which one the owner chooses depends on the circumstances of the case, but a contractor or subcontractor has to be prepared for any one of these types of claims if it believes a suit is pending.

A claim of negligence refers to the obligation a construction firm has to use a reasonable degree of care, skill and knowledge when doing a job. The law imposes this obligation upon builders, and any party who may foreseeably be harmed by the failure to meet this duty can sue under this theory. This includes subsequent buyers. Developers and general contractors are legally responsible for negligence committed by subcontractors.

Another possible claim is breach of contract. Under this theory, the owner contends that the builder or developer did not perform an obligation under one of the contracts between the parties. Instead of an all-or-nothing proposition, the doctrine of substantial performance often comes into play. This requires the owner to pay the builder the contract price, minus the reduced market value caused by the builder’s failure to comply with the plans.

The owner might also claim breach of warranty. The contract may contain several warranties regarding the condition of the property. One common warranty is that a home was built for sale to the public to be used for a specific purpose. If that is not possible, the builder might be blamed in a lawsuit.

More legal theories could be involved, and a suit could include a combination of claims. An attorney can help a construction company defend itself against litigation.

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