There is no single definition for construction defects. However, statutory authority and case law provide useful guidance in identifying and categorizing different types of defects.
In general, there are three types of construction defects:
A manufacturing defect that results in a product that differs from the intended result. A design defect that makes a product unsuitable or even dangerous for its intended use. A warning or instructional defect, which concerns a product’s failure to adequately apprise a consumer or end-user of the product’s risks or proper and safe use. Statutory law refines these categories, defining construction defects to include the failure of contractors or owners to meet certain “functionality” standards. For instance, the “right to repair law” contained in California Civil Code §§896-945.5 specifies such functionality standards for original residential construction built after 2003. Notably, the California right to repair law applies only to residential construction and exempts conversions. (A conversion is loosely defined as the repurposing of a building, such as from commercial use to residential use.)
In addition, under the California right to repair law, a function or component of a structure, even if not expressly addressed by the functionality standards, is considered a defect if it “causes damage.”
Case law also addresses the definition of defects. For instance, under California case law, any “as-built” condition that significantly deviates from an approved set of drawings, an applicable building code, or trade standard, reflects an as-built defective condition. An “as-built” condition is defined in the trade as the condition of a building as finally constructed. An example of a defective as-built condition defect would be a door or window that is built in a location or opens in a direction contrary to the original drawings (the “as-planned” condition), and that such deviation from the drawings has not been signed off by the client representative. An example of a non-defective as-built condition would be where during construction the builder slightly deviates from the approved drawings and relocates the walls and doors to account for a customer request or wiring or piping that needs to be routed. In the usual course of construction, this, in itself, would normally not be considered a construction defect.
As reflected here, there are a number of construction conditions that could be considered “defects.” One way for an owner or builder to avoid the costly expense of construction defects is to ensure that even minor deviations from the approved drawings are approved by the customer prior to the work being started.
