Who Is Responsible for Construction Defects?

One of the most critical questions to answer after the discovery of a construction defect is who is responsible for the damage? That may not be a quick or easy thing to determine.


What Can Go Wrong with a Construction Project

Many things can go wrong on a construction project ranging from bad design, dysfunctional coordination between parties, or lack of cooperation between design professionals and construction crews. Other factors can be poor workmanship or a failure of the subcontractors to build according to the plans and specifications. All of these items could potentially lead to defects that require expensive remediation. 

When evaluating who is responsible for a construction defect, one question to ask would be: was the issue caused by improper construction, defective design, poor coordination, or a combination of all three?


The Chain of Communication on Construction Sites

Typical construction projects of multi-family residential and/or commercial projects start with an owner or a developer who then hires an architect, general contractor, and specialty engineers and consultants. Contracts are drawn up, designating each entity’s responsibilities (for example, who is responsible for testing, inspections, etc.). 

During the design phase, it is common for the owner or developer to make decisions about which products or design to use, often based on the recommendations and/or suggestions of its design professionals. 

The general contractor (GC) is responsible for the means and methods of the entire construction project. The GC also has to ensure that the project meets all local building codes. The GC typically hires all subcontractors to perform each aspect of the project.

The architect normally heads up the design team and is responsible for ensuring that the project follows the original design intent. The contractors work off drawings approved by the architect. This company or individual also coordinates between all the design professionals and may or may not be contractually responsible for “construction administration” and inspections along with other duties. 

Engineers are hired to perform specialty design work such as structural, mechanical, plumbing, electrical, or civil engineering design services. They are responsible for preparing drawings and responding to requests for information (RFI) pertaining to their specific role. They may at times provide direction to the contractors or suggest which products to use. 

Specialty designers are typically brought in to handle things like landscape architecture, lighting, aquatic design, or other specialty items. They prepare drawings and may have the responsibility to inspect construction progress or to coordinate with other engineers. 

The threshold inspector is responsible for performing regular inspections of the building’s structural shell during and following its construction and, once approved, for drafting a letter to the local jurisdiction certifying that the construction follows the code and the approved plans. 

Throughout a project, the developer may also hire specialty inspectors to evaluate or test certain components of the property, such as waterproofing, stucco, or glazing. These inspectors are tasked with identifying any problems and sometimes offering solutions for repairs so that everything functions properly. 


How to Determine Who is at Fault

If something goes wrong with a construction project, the first order of business is to review all contracts to determine each party’s scope of work, which will assist in the analysis of determining which parties are responsible for the defects and where the process broke down. Some other items to review include requests for information, change orders, shop drawings, specifications, and other documents generated during the design and construction phases of the project. 

This type of review requires extensive expertise with construction contracts, a general understanding of how construction projects are completed, and an understanding of which actions and/or inactions were likely the cause of the defect. Due to the hyper-technical nature of certain defects, you will likely need to work with a professional engineer to assist in the evaluation. To learn more, contact Jacob Epstein at jepstein@haber.law.