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Preparing for Construction Defect Litigation as a Homeowner

Construction litigation can be frustrating and often leads to an outcome where homeowners settle for less than it will realistically cost to fix and finish a project. There are a lot of variables to consider in evaluating whether it is worth it to pursue a construction defect case. That evaluation is frequently case-by-case, as every matter differs factually; however, there are certain actions you can take as a homeowner to ensure your cases are postured in the best possible manner to obtain maximum results when you walk into an attorney’s office.


First and foremost, you must retain all documentation relating to the project. You want to ensure you have a complete file of any and all contracts, change orders, payment records, insurance documentation, permits, and plans, among others. In addition, you want to organize and retain all communications with your contractors, including emails and text messages, as those communications may have a larger impact on your case than you may imagine. For instance, perhaps an email or text message you thought had no bearing on your case actually modified your agreement as a matter of law, or a text message exchange you thought had no significance constitutes a binding contract where everything else was verbal. Presenting an organized and complete file to your attorney at the outset of the case not only allows your attorney to properly evaluate the merits of the case, but will also save you money on attorney fees that would otherwise have to be incurred trying to obtain records or conduct additional discovery.


Next, take photographs – of everything. Preserving the defective conditions in clear, unedited photographs and/or videos is vital to any construction defect case. For issues which may cause continued or more significant damage if left untreated, you may have the obligation to minimize any further damage by fixing the issue before litigation. Without photographs depicting the scene as it was in its defective state, you are left with very little with which to persuade a court that you have been harmed. Moreover, if evidence is not properly preserved, you may not only lose your case, but suffer sanctions for the destruction of evidence. You should consult with an attorney as to whether your individual circumstances require you to mitigate your damages immediately.


Finally, we like to tell homeowners to be mentally prepared for the dispute to go unresolved for at least a year, though COVID has further delayed that benchmark across Colorado courts. Absent the most obvious defect claims, reasonable insurance companies and opposing counsel, and documented admissions of fault from the contractor, construction cases frequently take some time to resolve. You or your contractor may sue multiple subcontractors or laborers, and those people have a chance to do the same. Insurance coverage determinations may take several months, potentially delaying your case. Expert witnesses will likely be retained to investigate and opine on the defect issues.


It is easiest for every party to come to resolution once everyone’s cards are on the table, and that takes time, complete preservation of your project’s records, and well-documented evidence of the defects you claim your contractor caused.


If you have a construction defect claim and need guidance, please do not hesitate to call our office for a consultation.

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