Reasons for Home Construction Disputes
Construction is an industry that seems to create more legal disputes than most other fields. Some of that is due to the fact that homes are the single largest purchase most people make – and they have to live there every day. As a result, defects do not go unnoticed; rather, they tend to annoy the homeowner until resolved. Another reason is that defects are often expensive to repair, so some builders evade their obligations – they don’t want to stop work on a current project to go back to an old project and work on something that will cost them money. Yet another reason is that sometimes, homeowners are so emotionally attached to their homes that they become unreasonable and difficult for the builder to work with – even honest builders who are trying their best to make things right.
2 Sides in Every Dispute
In my career, I have represented both homeowners and builders in construction litigation cases, so I have seen the disputes from both sides. Ohio law provides some interesting wrinkles that must be navigated in order for attorneys to effectively represent their clients’ interests.
Dangers of Filing Incorrectly
First, (an issue that applies in every state) is the fact that some construction contracts do not allow for litigation through the court process. Many contain arbitration clauses that require a suit to be brought through a private service. Normally, this should not create a problem, unless the attorney fails to read the contract carefully. I have seen plenty of cases that were incorrectly filed in Common Pleas Court, only to end up being sent to arbitration. The sad result is that a homeowner could find their timeline pushed back 6 months because of their attorney’s lack of attention to detail.
Who Has the Leverage?
Second, Ohio Revised Code 1345, the Consumer Sales Practices Act, creates some real leverage for homeowners in Ohio because a builder could end up not only paying for the actual cost of repairing the home, but in some cases they can be ordered to pay the attorney’s fees for the homeowner, plus a penalty of triple the actual damages. The prospect of this large judgment can force some builders to settle cases, even when they fully believe they are in the right.
However, if the builder meets certain criteria, it can nullify the Consumer Sales Practices Act and replace it with Revised Code 4722, which limits the non-economic “penalty” damages to $5000, and only allow for the homeowner to recover their attorney’s fees if the builder knowingly failed to perform in a workmanlike manner (or engaged in other bad conduct). In addition, Revised Code 1312 and 4722 create some additional steps the homeowner must take before filing a lawsuit or arbitration – namely sending a written notice to the builder and allowing the builder to attempt to resolve the problem within a specified time frame.
Is Your Attorney Experienced?
The legal technicalities mentioned above can make a huge difference in the progress of the case. Steps taken (or missed) early in the process can strengthen or weaken either side’s case. Moreover, many of these statutes have been changed fairly recently, so a lot of attorneys miss things simply because they are not up to date. Before selecting an attorney, homeowners and builders need to make sure they find someone who is experienced specifically in construction litigation.