Real Estate Law Article

Construction Defects Damage

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: How much can I recover from construction defects in my home?

 A: Construction defects commonly arise from a contract relationship between a homeowner and builder. Florida law regarding contracts generally allows a person harmed by poor performance to choose between getting his money back while returning or subtracting any valuable benefit that he actually received (sometimes called “going pre-contract”) or obtaining the expected benefit or value of the contract (sometimes called “going post-contract”). An example of going pre-contract is when you buy a lemon of a car and obtain a refund for what you paid in exchange for giving the car back to the seller.

For construction defect cases, you are often better off going post-contract so that you can get the project completed and enjoy your home. For example, if a contractor leaves you with a leaky sink, you typically just want the sink fixed. This would be going post-contract. So, under Florida law for construction defects, a homeowner can sue and get a judgment against the contractor for the reasonable cost of construction and completion according to the original deal.

But what if a defect causes the house to be practically worthless?  That is what happened to Angela Gray of Hillsborough County, who represented herself in a case that led to a jury verdict in her favor of $168,000 (the construction price for the entire house). But the judge knocked the verdict down to $16,000, which was the price that the homeowner paid for the replacement of a balcony, apparently because the homeowner had not shown any other concrete amounts paid or damages sustained from the leaky and rotting house. In an appeal, this time with Ms. Gray having retained the assistance of an attorney, the jury’s verdict was reinstated, because the jury could have reasonably concluded from the testimony of a general contractor (not the original builder), a real estate agent, and a structural engineer that the house was better bulldozed than repaired. The homeowner did not even have to attempt to prove the cost to repair. Instead, where construction and completion according to the original deal would be economically wasteful, the homeowner could seek and get a judgment for the difference between the value of the product sought and the value of the performance received. As the performance received was worthless according to the jury, it is reasonable to say that the construction price was roughly the value of the performance Ms. Gray expected to receive.

This construction defect case is unique not just because there was a determination that a homeowner received a worthless house, but also because there was no need for extensive evidence on the value of performance received or the cost to remedy. Most construction defect cases benefit from having the right legal counsel and expert testimony to establish damages with relative certainty.

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