The Owner’s Guide to Avoiding Defects

Construction defects can be extremely costly, and one of the best ways to avoid them is careful planning to anticipate the common problems that occur during the design and construction phases. 

For the most part, significant defects often arise in the exterior envelope of the project resulting in water intrusion including defects in the roof system, windows, sliding glass doors, stucco application, improperly applied exterior foam features and the improper installation of post-tension cables throughout a building structure.  Aside from these issues, Americans with Disability Act requirements are frequently ignored or misinterpreted and can cost significant dollars to correct once construction is complete. All of these conditions can be avoided by taking a proactive approach to identify problems early on through a variety of measures that can effectively mitigate damages and most importantly avoid costly litigation.

There are three main steps owners can take to minimize the risk of defective design and construction defects during construction. 

Peer Review

The first step in mitigating potential damages is to arrange for a peer review of the plans and specifications for the project. Retain another design professional with experience with the applicable building codes and standards who can catch any flaws prior to the construction process.

Retain a mechanical engineer to double-check calculations for mechanical systems to ensure compliance with manufacturer specifications. Throughout the design process, there are many decisions and calculations that affect the accuracy and viability of the superstructure. These decisions often take place during value engineering where the parties seek to save money by providing alternatives to specified systems. During this process, building code requirements can be compromised and frequently, costly mistakes occur. A peer review of the design of a project is money well spent and can catch errors that would be significant to correct during construction and after occupancy. Most importantly, peer review can dramatically reduce costly change orders during the project that will drive up the cost of construction. 

Independent Inspectors

Owners should not rely on governmental inspectors. For the most part, governmental inspectors enjoy sovereign immunity for their negligent acts. Project design professionals such as architects will claim that they did not have full-time inspection responsibility and, therefore, are relieved from liability if the contractor performs defective work. In addition, if the design professional discovers a design defect during construction, they will be hesitant to blow the whistle on themselves and accept liability. To overcome these various factors, we recommend that owners hire independent inspectors to focus on installation issues that often result in building code violations, water intrusion and life safety issues. 

An independent inspector who is specially trained in certain construction projects such as shopping centers, condominium buildings or schools can quickly recognize typical issues that arise in specialty construction projects to mitigate damages. The use of independent inspectors should also be addressed in agreements with other participants for the design and construction of the project. These agreements should specify that all inspections by the owner are for the owner’s direct benefit. This is critical to avoid later arguments by project design professionals and contractors that the owner is barred from later complaining about defective conditions because the owner’s inspector failed to discover them.

Photo Documentation

In addition to the use of peer review and independent inspectors, owners would also be wise to take advantage of recent advances in jobsite photo documentation such as visual construction documentation through photo, video and webcam. Onsite cameras can be used in real time to spot issues and enable an owner’s consultant to assist in promptly solving critical construction issues even when the consultant is not on site. These innovative techniques promote collaboration and problem solving among the design and construction team along with owner representatives. Precise photo documentation can also be used to establish liability with specific parties in the wake of construction disputes. All of these tools can assist the parties in reaching timely solutions during construction and avoid litigation from not only among the design and construction team but those third parties that will occupy the completed project.  

Owners can initiate proactive steps to eliminate and mitigate risks during the design and construction stages of commercial and residential projects. Peer review during the design stage can identify potential design defects before construction commences. Moreover, independent inspections scheduled by the owner can help ensure proper installation and consistency during the construction stage of a project. Finally, comprehensive photo documentation can be used in real time to identify defects before they are covered with building finishes. These best practices can go a long way to avoid costly repairs and litigation. 

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