If your property was subject to faulty construction work do not be too quick to repair the defects. This caution is advised because you may be skipping the steps necessary to properly preserve valuable evidence of the defects. If you plan to sue the party responsible for the defects, whether a contractor, subcontractor, engineer, architect, etc., then evidence of the defective work is key to your claim. Even if you do not plan to sue, litigation might be forced on you by the party responsible for the defective work if they later bring suit for a common claim like unpaid bills. In these situations, preserving evidence of the defective construction work becomes important because, under Colorado’s Construction Defect Action Reform Act (CDARA),
If a claim is made that construction work is defective, then notice must be provided to the other side and they must be given an opportunity to inspect the defective work and offer to correct it. This can be true even in situations where you choose to fix the defect yourself and do not intend to sue the party responsible for the defects, because, as mentioned above, they may end up suing you. When this happens, it is likely you will want to make a counterclaim based upon the defective construction. But if you make such a counterclaim and have already repaired the defects, you may have also destroyed the very evidence supporting your claim. This can result in problems proving the defects existed and it opens up the door for the responsible party to claim they were denied an opportunity to inspect defects as required by CDARA.
This very scenario played out in the Colorado District Court case of RJB Dev. v. Saylor. In that case, the Saylors entered into a construction contract with RJB for RJB to perform construction work on their residence. After construction began, but before completion, the contract was terminated. RJB then sued for unpaid bills for work performed and materials and labors supplied. The Saylors counterclaimed for costs they spent to repair the defective work performed by RJB.
RJB argued that the Saylors’ counterclaim was barred because the Saylors failed to give RJB notice of the defects as requirement by CDARA and that by repairing the defects, evidence of the defects was destroyed before RJB had an opportunity to inspect the defects. Despite the Saylors’ arguments to the contrary, the court determined that CDARA requirements applied to the Saylors’ counterclaim. The court held that if RJB was denied the opportunity to inspect and offer to correct the defects (before repairs were completed by the Saylors’ replacement contractor), it would violate the CDARA process.
To protect yourself against a similar result and to avoid unnecessarily complicating or jeopardizing your case, it is advised that any time you discover construction defects, you adequately document the defects as they exist and then document any work done and cost expended to repair the defects. This is especially important if you choose to repair the defects without first filing a claim against the party responsible for the defects. Alternatively, if you anticipate you might be sued, a better option might be to initiate a suit against the responsible party.
Before making any decision, you should talk to an attorney who can advise you on these options and the best course of action given your circumstances. Contact us at Jorgensen, Brownell & Pepin, P.C. to arrange an initial case evaluation with our lawyers.