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The difference between obvious and hidden construction defects

Some construction defects are obvious, perhaps even to a layperson. Other times, the new construction or remodel seems to have been done properly, but a hidden defect is lying in wait, potentially able to cause serious damage to the property.

In construction law, a more obvious defect, such as holes in the roof, is called “patent.” One that is hidden away and not obvious to a reasonable person is referred to as a “latent” defect.

As these terms imply, it is much less likely for a property owner to immediately discover a latent defect compared with a patent one. In fact, it could be years before the defect is discovered. It is likely that a latent defect will not come to light until, say, the mold is taking over the house, or the house’s foundation is cracked. In other words, when the building needs extensive repairs.

But contractors need not worry if every project they have ever been involved in will lead to litigation. As with most other civil law matters, there is a statute of limitations that sets a time limit on a property owner’s right to sue over a defect. Depending on the laws of the state where the property is located, the clock starts ticking once the owner discovers the defect, or reasonably should have. In other cases, a potential plaintiff has from the completion of the home until the end of the statutory period to sue.

If the plaintiff waits too long, that is a legitimate defense to his or her lawsuit. Also, the burden of proof is on the plaintiff to show that the defect was the defendant’s fault.

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