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Bad news for homeowners, good news for builders - Is it good news for Engineers?

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The following news article was found on the Inman Real Estate News website
at the following link:
http://www.inman.com/hstory.asp?ID=22128&CatType=R

Tuesday, December 05, 2000
Inman News Features


California homebuilders have won an important legal victory in their fight
against construction defect litigation.
The state California Supreme Court ruled 5 to 2 Monday in Aas vs. William
Lyon Co. that homeowners can't sue builders for negligence unless
construction defects have caused economic or personal injury.
Previously, homeowners could sue within 10 years of construction without
having sustained economic or personal injury. Now, the time-span of lawsuits
has been fixed to a home warranty, which could be one to 10 years.
Builders' attorneys told the Los Angeles Times that owners can still recover
defect repair costs while a warranty is in effect on a new home.
Builders have claimed for years that negligence lawsuits were playing a
major role in the slowdown of condo construction.
"Spending millions of dollars to correct technical defects...is something of
an economic waste," attorney Gregory L. Dillion, who defended the William
Lyon Co., a major homebuilder, in the case, told the paper.
Lyon was sued by owners in a San Diego condo and single-family housing
development.
The majority opinion held that lawsuits over any building code violation
could be a force in higher housing costs. Justice Kathryn Mickle Werdegar
wrote that codes regulating quake-safer walls, for instance, didn't mean
that "any given defect is sufficiently grave to pose a realistic risk of
structural failure."
But Chief Justice Ronald M. George disagreed with some of the court?s
decision, and wanted the state Legislature to mandate that dangerous
construction inadequacies be repaired at the builders' expense, the paper
reported.
"California is prone to earthquakes, and, tragically, the negligent
construction of residential housing almost surely will result in the deaths
and injury of numerous current and future residents of this state," he
wrote.
Duane E. Shinnick, an attorney for the plaintiff, believed the ruling could
create a negative environment for disclosure to future buyers because
reimbursement won't be possible for them. Home defects will then linger.
"Under this ruling, there also is not as great an incentive for developers
or contractors to build the home according to code because they can hope
that no damage occurs within the first 10 years, and then they are off the
hook," Shinnick, told the newspaper."
Copyright 2000 Inman News Features

While this is a big win for builders and developers in California, it is
also a reprieve for engineers as lawsuits may not be able to be filed for
discoveries of errors and omissions until the damage has been done. Although
I don't know how far reaching the courts decision is, I discussed it with a
friend who is a long time Expert Witness. He was in agreement with the
conclusions I had drawn and felt that the wrong nail had been driven in
place by the state supreme court.

The bad news is that owners of homes with deficiencies, caused by lack of
compliance to either the construction documents or to the building code,
have no legal recourse to force builders to repair the deficiencies or to
pay for remedial work that must be done to protect the home. Essentially,
the owner must invest out-of-pocket for the repairs, or wait until damage
occurs.

In my opinion, this gives the builder an incentive to ignore efforts to
promote continuing education, training and special certification for those
constructing structural systems. We are not moving in a direction that will
help improve the quality of construction that we admittedly have seen
deteriorate over the years.

Does this also provide protection for engineers and architects who decide
not to comply with the provisions of the 97 UBC? Can we simply thumb our
noses at the Seismology Committee and ignore all of the issues which we
object because we can no longer be held responsible for any damage that does
not take a life? Again, in my opinion, this is not the way to improve sick
building codes!

I received an e-mail from Sandy Skipper-Lopez, who is the California Chapter
Director for HADD - Homeowners Against Deficient Dwellings
(http://distressed-homeowner.tripod.com/constructiondefects/). She wanted to
remind me that California Law still requires full disclosure of the defects
upon listing the home for sale. Not only will this prevent homeowners from
getting the builder to correct the errors, it will reduce the homes value on
the market and make it difficult for the homeowner to sell.

Regards,
Dennis S. Wish, PE
The Structuralist Administrator for:
http://www.structuralist.net
AEC-Residential Listservice
admin(--nospam--at)structuralist.net
(208) 361-5447 E-Fax
ICQ # 95561393