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Possible defenses for claims of construction defects

On Behalf of | Sep 11, 2023 | Construction Litigation

Construction defects can be a daunting issue for anyone involved in the construction industry. Allegations of inadequate practices or materials can lead to disputes and, in some cases, claims for damages.

When it comes to accusations, there are several legal defenses available to those facing such claims.

Lack of notice

Contracts typically require the claimant to notify the responsible party promptly upon discovering any issues, and failing to do so may weaken the claimant’s case. To assert this defense, the defendant must demonstrate that the claimant failed to provide timely notice of the alleged problem.

Acceptance of work

If the claimant accepted the construction work as complete and made final payments without identifying any defects, the defense can argue that the claimant waived their right to seek damages. This defense relies on the idea that the claimant approved the work as satisfactory.

Contractual provisions

Many construction contracts include provisions that allocate risk and specify dispute resolution mechanisms. The defense can rely on these contractual provisions to argue that the claimant should follow the agreed-upon process for addressing defects, such as mediation, before pursuing litigation.

Contributory negligence

In some cases, the claimant’s actions or negligence can contribute to the defects that led to damages. With the contributory negligence defense, the claimant’s own behavior played a role in causing or exacerbating the issues, thereby reducing the defendant’s liability.

Substantial completion

In some cases, the defense may argue that the construction project was practically complete, meaning that it was suitable for its intended use despite minor defects. This defense emphasizes that the defects did not prevent the project’s functionality or safety.


It is also possible for construction companies to challenge the causation between the alleged defects and the damages claimed by the plaintiff. In this case, evidence would need to show that the defects did not directly cause the damages in question.

According to Arcadis, the cost of construction litigation in North America amounted to $37.9 million in 2020. Because the stakes are so high, construction businesses must utilize a solid legal defense to mitigate the accusations against them.