You've just moved into a brand-new home in Kansas, constructed by a local building developer. Like many homeowners, you bought the building before it was complete, based upon plans and drawings. After a few weeks of living in the home, however, you begin to realize that the building is somewhat different from what was promised. Perhaps there is no electricity on the top floor. Perhaps the air vents are sealed shut. Or perhaps there are even larger, more structural problems. The use and value of your home is far less than what you expected.
How can you recover against the builder for these sorts of defects under Kansas law?
Before you march off to see a judge, you’ll need to speak to your builder. By statute, Kansas requires that homeowners give builders a “right to cure.” This means that the builder has the opportunity to remedy any defects in construction before facing litigation.
You must notify the builder of any claims or problems at least 90 days before you file a lawsuit. According to Kan. Stat. 60-4706, “Ninety days before you file your lawsuit, you must deliver to the contractor a written notice of any construction conditions you allege are defective and provide your contractor the opportunity to make an offer to repair or pay for the defects. You are not obligated to accept any offer made by the contractor.”
Typically, the builder will negotiate and offer a way of curing whatever the problem is. If the builder fails to remedy the issue, you haven’t waived your right to sue. The purpose of this statute is to encourage settlement, and to give builders an incentive to correct their own errors before needing to hire attorneys and begin the costly process of litigation.
Assuming that the builder has failed to cure the defects, you’ll want to make your legal case against it. One of the most common causes of action is based on breach of contract.
Having moved into a newly constructed home, your builder or developer surely gave you extensive materials describing it. You would have needed to sign a contract outlining your payment and the builder's promise to construct the home.
Part of your lawsuit against the builder will be that the builder breached this agreement and failed to give you the home that it promised. Here, all of the materials the builder gave you, including photos, descriptions of the home, and emails and other correspondence describing the work will be useful to establishing your expectations at the time you entered into the contract.
For example, if the various documents clearly show that you thought you were getting a home with a pool but the home actually contained a three-foot goldfish pond, this demonstrates the builder’s breach. Note that under Kan. Stat. § 60-512(1), you have three years to file a breach of contract action based upon your written contract.
If you've found architectural design defects in the home – for example, a foundation that's unstable as designed – you may have claims for professional negligence against the architect. In many home development/builder contexts, you may have personally met or had communications with the architect; in other contexts, these communications may have only been through the contractors or development company.
A claim of professional negligence, if supported by the evidence, would give you access to another defendant (and source of damage payments). Strategically, it is also likely that your architect has professional liability insurance for just this sort of occurrence. Under Kan. Stat. § 60-513(a)(2), you would have two years to bring this type of action.
The statutes of limitations (deadlines within which you must sue) are already fairly short in Kansas, and language in your contract might actually make them shorter. There are a few clauses to watch out for in your contract with your builder or developer before filing your lawsuit.
First, it is common in construction contracts (in Kansas and elsewhere) to find a dispute resolution clause. That clause may provide that you were required to go to mediation with your builder for developer before filing your lawsuit. In this context, mediation is a facilitated negotiation for settlement, led by a third-party neutral individual. Often, that individual will have some experience with construction law, engineering, or building development.
Your contract may also have an arbitration clause. This clause would require that you go to arbitration against the builder or developer instead of litigation in a court of law. In arbitration, either one or three individuals – again, typically with experience in construction – will render a final determination on your dispute. The advantage of arbitration is that it is generally quicker than litigation, saving you money on legal fees. A potential disadvantage, however, is that an arbitrator's decisions cannot ordinarily be appealed.
Finally, take note of any aspects of the contract that shorten your statute of limitations or ability to make claims. It is not uncommon that construction contracts will shorten the amount of time that the law gives you in which to file a legal claim against your builder. An attorney will be able to carefully review the document for these sorts of limitations.