Construction litigation is often complex. It involves contracts, claims, arbitration, mediation, and monetary issues.
Our attorneys understand the difficult insurance coverage issues inherent in large construction projects and have a diverse experience base to manage potential issues.
Our cases involve both private and public projects, with disputes involving contractors, subcontractors, development companies, owners, architects and engineers.
Areas of expertise
- Construction/Building Defects
- Contract Disputes/Litigation
- Contract Drafting/Review
- HOA Issues
- Insurance Coverage/Bonding
- Mechanic’s Liens
- Mold Claims
- Payment Disputes
- Realtor Disputes
Folkestad Fazekas Barrick & Patoile, P.C., is one of the largest law firms in Douglas County, Colorado. Founded in 1972, we are committed to the Front Range Area and surrounding communities. Our attorneys understand the courts, the law, and the players. We are committed to producing quality legal services for our clients in a timely, efficient, and economical manner.
Our firm’s practice extends to business entities, corporations, limited liability companies, civil litigation, construction law, commercial litigation, criminal and traffic defense, and family law. We also have extensive experience in juvenile law, insurance, employment and labor law, land use law including annexation and zoning,mediation and arbitration proceedings, planning and development, municipal law, property tax appeals, real estate law, equine and equestrian law issues, foreclosure, probate, special district law, common interest communities and homeowners’ associations, and wills, trusts and estates.
Construction Defects: What Homeowners Need to Know
If you think you have experienced a defect in the construction or remodeling of your home or commercial property, there are a few important pre-litigation considerations that you need to be aware of. The following is a list of FAQs about the Colorado Construction Defect Action Reformation Act (“CDARA”), and three major potential pitfalls for homeowner claims: the statute of limitations, statute of repose, and the Notice requirement. Failure to abide by these restrictions may postpone an ongoing lawsuit, or in some cases, bar a homeowner from filing suit. Contact the litigation team at FFBP if you are considering pursuing damages from a contractor – we can evaluate your case and assist you with the CDARA process.
1. What is CDARA?
CDARA is the acronym for the Colorado Construction Defect Action Reformation Act. It is intended to ensure that homeowners with complaints of workmanship issues arising out of an improvement to real property engage their contractors in pre-litigation discussions to resolve the problem(s). This attempt at resolution must happen a certain number of days prior to the homeowner filing their action against any contractors. From the contractor’s perspective, CDARA helps protect construction professionals from the litigation of inconsequential or stale claims, as claims must be pursued by a certain deadline or claims will be barred.
2. What qualifies as an “Action?”
CDARA defines an “action” as: “a civil action or an arbitration proceeding for damages, indemnity, or contribution brought against a construction professional to assert a claim, counterclaim, cross-claim, or third-party claim for damages, loss to, or the loss of use of, real or personal property or personal injury caused by a defect in the design or construction of an improvement to real property.”
3. What is a “Construction Professional?”
Under CDARA, a construction professional means “an architect, contractor, subcontractor, developer, builder, builder vendor, engineer, or inspector performing or furnishing the design, supervision, inspection, construction, or observation of the construction of any improvement to real property.” Interestingly, if the property at issue is commercial property, “the term ‘construction professional’ shall also include any prior owner of the commercial property…at the time the work was performed. “Commercial Property” means property that is zoned to permit commercial, industrial, or office types of use.
4. What is the Statute of Limitations for Construction Defect claims?
The CDARA statute of limitations operates to bar claims when a period of time has passed after the claim has arisen or an injury has resulted. It is designed to prevent homeowners from delaying and not pursuing their claims after they learn that a construction defect exists. The statute of limitations requires all homeowners to bring construction defect claims against a construction professional within 2 years from the date the “claim for relief arises.” The statute further explains that a “claim for relief arises under this section at the time the claimant or claimant’s predecessor in interest discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately caused the injury.”
5. What is the Statute of Repose?
The statute of repose imposes an absolute bar on all construction defect claims after a set period of time, regardless of whether the claim has arisen or an injury has resulted. With limited exceptions, homeowners are given 6 years from the date of “substantial completion of the improvement to real property” to bring claims against a construction professional. If a homeowner discovers a defect in the 5th or 6th year, the statute of repose can be extended out for an additional 2 years, or 8 years total.
6. Assuming your claim is timely, what is the next step?
Sending a “CDARA Notice” to your contractor (or, if you’re the contractor, responding to the Notice). The Notice must be sent to the contractor no less than 75 days prior to filing suit (for residential properties) or, for commercial properties, no less than 90 days prior to filing suit. Upon receipt of the Notice by the contractor, the homeowner needs to be prepared to offer “reasonable access” to their property for an inspection by the contractor. This inspection needs to take place within 30 days of delivery of the Notice. Within 30 days’ following the inspection (or 45 days for commercial property), the construction professional may send or deliver: (1) an offer to settle the matter by payment of a sum certain; or (2) an offer to remedy the claimed defect. The homeowner then has 15 days to accept the offer, or it is deemed rejected by law. If no offer is made by the construction professional, or if any offer made is rejected, the homeowner may file suit for the defects claimed in the notice (unless any contract between the parties calls for pre-litigation mediation). If the construction professional fails to comply with its offer to settle or remedy, the homeowner may proceed to file suit for the defects claimed in the notice without further notice.
7. What happens if my claim is timely, but I fail to send my CDARA Notice?
Per statute, your case will be “stayed” (postponed) until homeowner has complied with all requirements.
