Can I Sell My Home While Suing the Builder Over Construction Defects?

How to deal with disclosures to the buyer, repair needs, and more when selling a newly built home and simultaneously suing the contractor who built it.

By , Attorney

Let's say you move into a newly constructed home, only to discover a serious problem, for example with the structure's foundation. The issue will require major repairs to correct, so you file suit against the builder. That lawsuit is ongoing, but now you'd like to sell your house and move. How do you go about this?

Although it might cause some troubles for both the buyer and the seller, a home can be sold while construction defect litigation is pending.

What Is a Construction Defect?

A construction defect is essentially any problem in workmanship, design, or materials that lowers the value of a home.

A defect in workmanship might be something like the failure to properly install certain windows. A design defect might be a failure to properly specify the openings for the windows to be installed. A defect in materials might be the use of low-quality glass that easily cracks in cold weather.

All of these situations could potentially give rise to a legal claim against the contractors, subcontractors, or architects. The exact process for suing your homebuilder in the face of such defects will depend on the law in your state.

Home Seller's Duty to Disclose Litigation to the Potential Buyer

If you've sued, you might have the instinct to cover up any construction defect litigation, and to hide the issue from potential buyers. This is a mistake. Even if you believe that the litigation will be wrapped up well before the closing, and even if you think all necessary repairs will be made by then as well, you still have a legal duty to disclose the situation.

Homeowners have, in most U.S. states, a common-law and in some cases statutory obligation to disclose known defects to prospective real estate buyers. Courts consider this disclosure to be the seller's obligation. Although the standard disclosures involve physical defects, a dispute with a builder would also likely be considered a material issue with the property that merits disclosure.

If you do not disclose, the buyers could sue you after the sale, once they inevitably learn of the litigation and the underlying defects. They might seek money damages for fraud if the defect lowers the value of the home.

If the defect is especially significant, the buyer might even attempt to unwind the sale, meaning that legal title would be transferred back to you and you'd need to refund the amount paid.

Moreover, a buyer doing reasonable due diligence would discover the lawsuit before the closing, and use this as a reason to distrust you and take a hard line in all other negotiations.

Avoid all this trouble and do the right thing: Disclose any construction defect litigation, and the defect itself, from the beginning.

Home Seller's Duty to Make Repairs

Even while the lawsuit is pending, and even while the home is on the market, you have an obligation to the seller to make such repairs as are necessary to prevent further damage or to bring the home to minimum levels of habitability. For one thing, the buyer's mortgage lender might not let the sale go until an unsafe condition is corrected.

If, for example, you discovered that your pipes were leaky and defective, you should not just sue the contractor and supplier and wait; you should actively repair or replace the faulty pipes to prevent flooding or other issues. These repair costs would be recoverable in court, assuming you are victorious in the underlying lawsuit.

Find a Broker with Experience in Selling Property That's in Litigation

As you interview real estate agents, make sure to ask about their experience in selling homes that are under litigation or have some sort of encumbrances (liens, easements, restrictive covenants, and so on). Such properties do require a bit of expertise to sell, especially since some buyers might have a difficult time finding financing.

If the scope of the litigation has a significant effect on the value of the property, banks and other lending institutions might become nervous, which would reduce a buyer's ability to close the sale. An experienced real estate agent will be able to guide you, and potential buyers, through this process.

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