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You've just moved into a newly built home in North Carolina, constructed by a builder or developer. From the outside, it looks wonderful, exactly as it promised. But after a couple weeks of living there, you begin to notice serious issues. Perhaps the issues are mostly aesthetic: the tiles on the bathroom floor don't quite line up, or the windows have a strange dark tint. Or perhaps the issues are more structural: the stairs feel shaky, or the doors don't fit smoothly into the frames. Surely, you paid for the home on the assumption that it would be perfect, or at least reasonably close. Construction defects lower the value of a home. How can you take action against the builder or developer for such defects?
The contract you signed with your South Carolina builder might contain what's called an "express warranty." Look for language along the lines of, "Your new home is warranted for ten years against structural defects," plus follow-up definitions and details. Or the warranty might be a more limited one, stating that for one year after the sale, the builder/seller will make all repairs and corrections to the home that become necessary through faulty construction, labor, or materials.
Review your sale materials to see whether an express warranty can be found within it, and its terms. Pay particular attention to any responsibilities it might give you, such as to notify the builder of your complaint within a certain amount of time. If you can get the builder to honor this warranty, you might not need to proceed straight to a lawsuit. But if the builder won't honor it, an express warranty might give you solid grounds upon which to pursue legal action.
North Carolina courts have, in the absence of express warranties within the contract, held that builders of new homes give homeowners implied warranties (essentially legal guarantees) that the home will be habitable and constructed in a workmanlike manner. These implied warranties do not necessarily mean that the home will be perfect, merely that the home is free from major structural defects. Because there's no actual statute addressing this topic, North Carolina courts have wide latitude to determine whether or not a builder has met its obligations.
For example, North Carolina courts have found an implied warranty of suitability for use as single-family residence, in a case where the builders ignored the fact that the lot could not actually support a septic tank (resulting in cave-ins), in Lumsden v. Lawing, 107 N.C. App. 493, 421 S.E. 2d 594 (1992). And in the case of Cantrell v. Woodhill Enterprises, Inc., 273 NC 490, 160 S.E.2d 476 (1968), the North Carolina Supreme Court stated that, "It is the duty of every contractor or builder to perform his work in a proper and workmanlike manner, and he impliedly represents that he possesses the skill necessary to do the job he has undertaken."
If you didn't receive an express warranty, or the builder is refusing to honor it, again look to the contract you signed. Part of your lawsuit against the builder will be that it breached this agreement; it did not give you the building that it promised to, or did not perform in a manner that met its basic obligations. Perhaps it even committed fraud, by making a knowing misrepresentation that you reasonably relied on, which resulted in harm.
All of the materials the builder gave you, including photos, descriptions of the home, emails describing the work, will be useful to establishing the builder's knowledge of the situation and your expectations at the time you entered into the contract. For example, if the various documents show that you thought you were getting a home with a two-car garage but the garage as built fits only one car, this demonstrates the builder's breach.
North Carolina has a three-year statute of limitations period (under N.C. Gen. Stat. § 1-52) on actions for breach of contract, negligence, and fraud. This means that claims based on a contract with the builder must be brought within this period, or they are barred. An exception to this is when a homeowner could not have reasonably discovered the existence of the breach until after the period; for example, if the roof caves in after four years because the builder used low-quality wood. And for fraud, the three year period starts when you discover the facts constituting the fraud.
Ordinary negligence in the context of construction defects is a builder's failure to exercise the correct standard of care. In North Carolina, in order to establish a claim for negligence, the homeowner must establish that:
To bring such a claim, you'd need to pay special attention to gathering evidence showing that the builder did something "wrong," for example installed windows facing the wrong way, thus causing a leak and resulting damage. Be sure to take photos and maintain all documents and receipts before you clean up or try to repair the problems yourself. (Basic repairs might be both practically and legally necessary so that the problem doesn't get worse while you wait for attention from the builder.)
A unique facet of construction defect litigation in North Carolina is the Statute of Repose for improvements to real property, N.C. Gen. Stat. §1-50(a)(5)(a). This law says homeowners have six years from the substantial completion (or the last specific act or omission of the builder) to file suit.
After the builder has been "off the job" for six years, a homeowner is generally barred from filing a lawsuit for an alleged construction defect, regardless of when the defect was or is discovered.
This is different from in many other states, where the limitation period is tolled (or delayed) based on when the homeowner discovers the existence of the defect. The North Carolina statute is meant to give certainty to builders, so that they need not worry about claims after six years. However, it means homeowners must be vigilant to ensure they do not get blocked by the statute.
There are a few clauses to watch out for in your contract before filing your lawsuit. First, it is common in construction contracts to find a dispute-resolution clause. That clause might provide that you were required to go to mediation with your builder or developer before filing your lawsuit. In this context, mediation is a facilitated negotiation for settlement, led by a third-party neutral individual. Often, that person will have some experience with construction law, engineering, or building development.
Your contract might also have an arbitration clause. This clause would require that you go to arbitration against the builder or developer, instead of litigation in a court of law. In arbitration, either one or three individuals (again, typically with experience in construction) will render a final determination on your dispute. The advantage of arbitration is that it is generally quicker than litigation, saving you money on legal fees. A potential disadvantage, however, is that these decisions are ordinarily non-appealable.
Finally, take note of any aspects of the contract that shorten your statute of limitations or ability to make legal claims. It is not uncommon that construction contracts will shorten the amount of time that you have to file a legal claim against your builder.
An attorney with experience in construction defect litigation in North Carolina will be able to carefully review the document you signed with your contractor for these relevant warranties and limitations, and strategize your approach to obtaining compensation.