Defective work may be so significant as to comprise a material breach of a construction contract.
During the course of construction, a contractor or subcontractor may furnish defective work, or work that does not comply to contractual, statutory, or governmental requirements. Construction contracts sometimes have provisions requiring notice and opportunity to cure in the event defective work is discovered, and / or provisions governing whether the other party may terminate the contract or supplement the work of the party who furnished defective work with another contractor. As always, these provisions must be fully reviewed and understood in order to comply with contract and avoid further points of legal contention. An alternative resolution to defective work is owner acceptance of non-conforming work—usually for a commensurate price decrease.
Is the Work Defective?
Sometimes, whether the work is defective at all is the substance of the dispute. Again, sometimes contracts have terms setting forth a decision process as to the conformity of construction work, usually ending in a claims process if the parties do not agree on the resulting decision. In deciding whether work is defective, it is crucial to review all plans, specifications, codes, regulations, and industry standards that might apply to the work at issue, and if necessary, hire an outside expert to review and analyze the claim thoroughly to either lend credence to or defend against a claim of defective work.
Florida Chapter 558 Notice of Defective Work
Chapter 558, Florida Statutes, sets forth a mandatory process for notification of defects and opportunity to cure such defects that applies to many construction projects. The purpose of the statute is to encourage a chance for resolution of defect claims prior to initiation of litigation. If served with Chapter 558 notice, there are certain response requirements and deadlines that are important to follow.
Marlowe McNabb Machnik, P.A. can help you navigate the your rights and responsibilities in the event of a claim of defective work, and help you either prosecute or defend against such claims.
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