4 Tips for Homebuilders Handling Mold Claims and Lawsuits

It is an exciting time in a family’s life when they move into a newly constructed home. Unfortunately, when mold also moves in due to faulty construction or faulty product manufacturing, the dream can turn into a litigation nightmare, as they can take legal action against the builder.

Here are 4 facts for homebuilders handling mold claims and lawsuits.

Protracted Litigation

There aren’t many attorneys with the training and knowledge to conduct this type of litigation. Proving injury from mold is difficult even for the most experienced of mold case litigators. Even so, there are an increasing number of toxic mold cases brought each year in a burgeoning toxic mold tort practice.

You also should understand that mold litigation can take up to two years to resolve. Such litigation is known as the ‘battle of the experts’, who each give opinions on the mold, and whether the defects in design or workmanship caused the plaintiff’s injuries. These considerations can mean expensive legal bills for a defendant even if the case is won.

Water Intrusion

No matter what legal theory underlies toxic mold cases, the decision to sue a builder for foundation problems usually stems from water allowed to intrude, and then pooling inside a building. The pooling gives mold the opportunity to grow on drywall, insulation, and other porous materials.

Many construction or design flaws can cause water intrusion, such as improper drainage or leaky pipes between floors. This water intrusion can lead to costly repairs by the builder.

Recommended reading: Why is waterproofing your house important?

Breach of Contract, Breach of Warranty, Suing a Builder for Negligence

So far, there are no federal regulations dealing with toxic mold. The few state rules are generally addressed in the landlord or tenant arena. Therefore, suing a builder for defective work generally falls under the auspices of one or more of the general law principles, as described below.

Generally, there are two legal theories under which a builder can be sued for foundation problems:

Breach of contraction action

Under a Breach of Contract action, the plaintiff will argue that the builder/contractor designed and/or constructed the building in a manner that resulted in water build-up and toxic mold. Such work, the argument goes, is a breach of the work contract. When the plaintiff generally sues for poor workmanship, it’s for out-of-pocket damages and the lost value of the property.

Breach of warranty action

Under a Breach of Warranty action, the plaintiff will argue that the construction was not done according to industry standards meant to satisfy an implied warranty that the completed building is fit for habitation when sold. Alternatively, a plaintiff may sue on the basis of a specific warranty made by the builder, designer, or construction company.

Most states also impose warranties on new construction that the work or construction will be free of defects (mostly for the first ten years). The damages in the case of a breach of warranty rest upon the difference in value of the building accepted by the plaintiff and what the value would have been without the builder/contractor’s breach (mold).

Suing a contractor or builder for negligence

A case built on Negligence theory may provide the most value to the plaintiff (and prove the costliest to the builder/contractor) because the plaintiff can sue for “pain and suffering” damages in addition to defective or poor workmanship. This is especially valuable in the context of medical injuries resulting from toxic mold. On the other hand, negligence claims are difficult to prove.

There are basically three elements to a successful negligence claim:

• The first is to prove a causal link between the injury the plaintiff sustained and the work done by the builder.
• Second, the plaintiff must prove that the builder/contractor owed a duty to the plaintiff to design/construct the building in such a way as to keep it free from mold.
• The third element for the plaintiff to prove is that the builder/contractor breached the duty of care to keep out mold.

These elements are difficult to prove, especially when it comes to the causal relationship between the work quality (including design features) and the growth of the mold.

If you want to read more about toxic mold cases, check out Coulter Boeschen’s article “Lawsuits for Toxic Mold Exposure in Your Home.”

Damage to the Builder’s Reputation

It takes years for a builder to create a reputation for building quality, trouble-free homes – but it takes just one job going awry to undo all of that hard work.

In addition to windows, doors and flashing, the air and moisture barrier you choose will heavily dictate potential moisture intrusion – moisture that can lead to mold and a lawsuit.

Using a high-performance, fully-adhered air and moisture barrier like DELTA®-VENT SA can provide performance and peace of mind for both you and your homeowners.