It is no secret that building envelope construction defects are prominent throughout our region. This issue affects thousands of properties and multiple builders. These defects are truly latent, with no visual cues or outward manifestation of water infiltration. Homeowners often discover the defect when they see scaffolding at their neighbor’s home and wonder if their home is similarly impacted. When invasive tests are finally performed, they often reveal a costly problem that in most cases requires removal and replacement of the entire building envelope, microbial growth remediation, window and door replacement as well as interior work. Real estate transactional practitioners and construction attorneys are left to navigate scopes of repair and sort through the shifting causes of action on behalf of the builders, subcontractors and the homeowners who are impacted.
Practitioners should be mindful of recent changes in the law affecting subsequent purchasers and spoliation. For those who purchased property from someone other than the builder (a subsequent purchaser), the landscape has improved, forcing contractors and builders to reassess the number and types of potential claims leveled against them. From the spoliation perspective, all parties must be especially mindful of new pitfalls relating to mere photographic evidence. Lastly, when considering whether to have an invasive moisture test performed, the Seller’s Disclosure Law must be considered, along with timing concerns.
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