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Construction Defect Disputes

Construction Defect Disputes in Colorado

Construction defects are flaws in the design, materials, or workmanship in the building of a structure. Most structures contain small or cosmetic flaws that don't cause any problems with the function of the structure, and that largely go unnoticed by their users. Construction defects become a problem when they're significant enough to interfere with or impede the use of the structure. In the worst cases, these flaws can pose real harm to people and property. Colorado law provides recourse for building owners who wind up with significantly flawed structures. 

CDARA Litigation and the Notice of Claim Process

Building owners faced with defective construction must follow the Notice of Claim process required under Colorado's Construction Defect Action Reform Act (CDARA) and attempt to resolve the issue prior to moving forward through a lawsuit.

How Does the Notice of Claim Process Work? 

  1. Written Notice. The building owner (known as the complainant or complaining party) must send a letter to any contractor or designer who performed the work at issue. After receiving the Notice Letter, the contractor/designer is entitled to inspect the property within 30 days. CDARA allows the parties to enter into a binding agreement modifying claims process timelines.
  2. Repair Offer. The contractor/designer has 30 days to make an offer to settle the dispute either by payment or by repairing the work.
  3. Completion of Process. If the parties reach an agreement, the claims process is complete. If they cannot, the complainant has the option to pursue a remedy through the courts or arbitration once 75 days has elapsed.
  4. List of Defects. If a complainant proceeds to court or arbitration, they must provide a list of defects to sustain the claim.

What is the Notice of Claim Timeline for Commercial Construction?

It is important to note that the above timelines only apply to residential construction projects. The timeline for commercial projects is longer. A snippet of CDARA below reveals the difference in timelines between residential construction and commercial construction.

No later than seventy-five days before filing an action against a construction professional, or no later than ninety days before filing the action in the case of a commercial property, a claimant shall send or deliver a written notice of claim to the construction professional by certified mail, return receipt requested, or by personal service.

C.R.S. § 13-20-803.5.

Claims: Contract vs. Tort

Colorado construction defect law contains an Economic Loss Rule, which states that if a party has only economic losses, they must sue in contract instead of tort. This makes it more difficult to state a claim for defective construction as negligence or fraud, but certainly does not bar these claims. There is some recent developing case law on the economic loss rule, so please do not hesitate to contact us with any questions.

Claims for Defects in Construction and Related Losses 

  • Breach of Contract. This claim might come into play if the contract has certain requirements for the build that are not met.
  • Breach of Express or Implied Warranty. This type of claim is often made by a homeowner against a builder. Colorado has an implied warranty of habitability and workmanlike construction with residential builds that the parties to these disputes need to be aware of.
  • Fraud or Negligent Misrepresentation. Depending on damages, a claim for fraud or negligent misrepresentation may be preferable for a home buyer against a builder or contractor.
  • Negligence. Different parties may claim a contractor's negligence caused construction defects. Negligence claims may be preferable to suing in contract, particularly for certain types of facts.

If you're in a dispute involving defective construction, call the experienced construction lawyers at Volpe Law, LLC, or contact us online to request a free consultation. We offer experienced, knowledgeable counsel on construction contracts and disputes.

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