Imagine that you’ve just moved into a newly constructed home in St. Louis, constructed by a builder or developer. From the outside, the house looks wonderful, exactly as had been promised. But after a couple weeks of living there, you begin to notice problems.
Perhaps these problems are mostly aesthetic – the floor stain wasn't applied evenly, or the paint isn't the color you thought you'd specified. Or perhaps the issues are more structural – the railings feel like they'd fall off if you leaned on them too hard, or the windows don’t fit into the frames. You no doubt paid the price you did for the home on the assumption that it would be perfect, or at least reasonably close to perfect. Construction defects lower the value of your home. How can you recover against the Missouri builder or developer for such defects?
If you moved into a newly constructed home in Missouri, your builder or developer likely gave you extensive materials describing your new home. You would have needed to sign a contract, outlining your payment and the builder's promise to construct the home.
Part of any possible lawsuit against the builder will be that it breached this agreement – did not give you the building that was promised. Here, all of the written materials the builder gave you, including photos, (glowing) descriptions of the home, and emails 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 two-car garage but the garage as built fits only one car, this demonstrates the builder’s breach. Missouri has a uniquely detailed statute, M.R.S. § 436.356.1 et seq., discussing defects arising from home construction. This statute describes the standards against which Missouri courts will hold builders who breach construction contracts.
Missouri limits the time in which a plaintiff can file a lawsuit to five years from the date when the damage was sustained. M.R.S. § 516.120. An exception to this is when a homeowner could not have reasonably discovered the existence of the breach until after the period – for example, if the roof caves in after seven years because the builder used low-quality wood and the homeowner couldn’t have reasonably known.
Regardless of the existence of a written contract, builders owe homeowners an implied warranty over the quality of their work. Missouri courts recognize that a new homeowner has a claim for an implied warranty of quality and fitness against a contractor who fails to live up to a basic standard of care.
Another possible basis upon which to sue a Missouri builder for construction defects is ordinary negligence. In this context, that would mean proving the builder’s failure to exercise the correct standard of care.
In order to successfully establish a claim for negligence, you'd need to show that:
Missouri courts hold that builders have an implied duty to perform services required by their contract with homeowners in a skillful, careful, diligent, and workmanlike manner, even without a written agreement. Note that Missouri has a five-year statute of limitations for basic negligence under M.R.S § 516.120.1.
A unique facet of construction defect litigation in Missouri is what's called the "Statute of Repose" for improvements to real property, in M.R.S. § 516.097. Under this legislation, homeowners have ten years in which to file suit after the project has been substantially completed. Once the builder has been “off the job” for ten years, a Missouri homeowner is generally barred from filing a lawsuit for an alleged construction defect, regardless of when the defect was or is discovered.
This is different from the law in many other states, where the limitation period is tolled (or delayed) based on when the homeowner actually discovers the existence of the defect. This statute is meant to give certainty to builders, so that they need not worry about claims after ten years. However, it means homeowners must be vigilant to ensure they do not get blocked by the statute. The ten-year window of the statute of repose begins to run regardless of whether the homeowner could have known about the defect in construction.
There are a few clauses to watch out for in your contract before filing your lawsuit. First, it is common in construction contracts to find a dispute resolution clause. That clause may say that you were required to go to mediation with your builder or developer before filing your lawsuit. In this context, mediation is a facilitated negotiation for settlement, led by a third-party neutral person. Often, that person will have some experience with construction law, engineering, or building development.
Your contract may also contain 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 are generally non-appealable.
Finally, take note of any aspects of the contract that shorten your statute of limitations or ability to make claims. It is not uncommon for construction contracts to shorten the amount of time that a homeowner has in which to file a legal claim against the builder. An attorney with experience in construction defect litigation in Missouri will be able to carefully review your documents for these sorts of limitations.