• Breach of contract. In a breach of contract action, generally each side must have been a party to the contract. For example, let’s say that a home buyer signs a contract with a builder to construct a house for her. They sign a contract, the house is built – but is defective. This home buyer would have standing (the right) to bring a breach of contract claim against the builder. However, if the original home buyer sells the house to home buyer #2, he would generally not have standing to bring a breach of contract claim because he was not a party to the original contract.
• Breach of warranty. A breach of warranty action is similar to a breach of contract claim, but generally arises out of any warranty that was given on the property. For example, let’s say a builder provides a homeowner with a one year warranty on the house. After six months, the homeowner discovers a crack in the foundation. That homeowner, and presumably a subsequent homeowner (if the first sold the house within that year), would have a breach of warranty claim against the builder. Most warranties are only given for a specific, or limited, amount of time.
• Negligence. A negligence claim arises out of a breached duty of care, the cause of which resulted in damages. For example, the builder of a home completes the project and the new homeowners move in. However, the builder’s lawn subcontractor failed to fill in a large hole in the backyard and the new homeowner fell into the hole and was injured. The homeowner might have a negligence action against both the builder and the subcontractor for failing to fill in the hole.
• Strict liability. Strict liability is the strongest theory of recovery available to consumers / homeowners. In a construction defect case, it means that the developer is strictly liable for defects regardless of whether he was negligent. For example, a builder constructs a house and installs hardwood floors that he believes to be of good quality. However, in reality, the floors are defective and warp a week after the new homeowner moves in.

  While the builder wasn’t necessarily negligent in installing the floors, he may be liable for the damages under a strict liability theory of recovery. Unfortunately, some states limit who can be sued under a strict liability. In California, only mass developers, those who construct many houses per year, can be held sued under strict liability.

The examples given are simply that – examples. Every case is very different and one or more of the above theories may apply to a single case. Consumers should seek the counsel of a qualified construction defect attorney to determine who might be liable for the injuries and/or damages they’ve experienced. To contact an experienced construction defect attorney, please click here.