Articles Posted in TYPES OF CONSTRUCTION DEFECTS

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As an Atlanta Construction Lawyer, I have worked with clients who have taken their Georgia construction arbitration, litigation, and disputes to the court system for resolution, and others who have gone through the process of arbitration. Many times, a construction contract specifically states that all disputes must be resolved through arbitration, yet unless contractually mandated, arbitration is often overlooked. It is important to note that while both methods have their advantages, arbitration is often the fastest and can be very cost effective.

In Georgia it can take a minimum of a year for a case to go to trial, while the date of the final arbitration hearing can be set much sooner. Disputes are often resolved just a few months after the arbitration process is initiated. The disadvantage to arbitration is that the parties named in the dispute will pay for the time of an arbitrator. Arbitrators belong to arbitration associations that are usually private businesses, and fees for an arbitrator can cost several hundred dollars per hour. The court system, on the other hand, is funded by tax revenue and requires that the parties pay only filing fees.

Besides the timing advantage, another strong point to arbitration is that the parties can choose the arbitrator that will preside over the case. Arbitrators have been trained in specific technical areas of the law and can be picked with this in mind. Judges in court proceedings cannot be picked and, although they have a broad knowledge of the law, the judge assigned to a case may not possess proficiency in the area that the dispute covers. In complex construction disputes, having the option to choose a knowledgeable arbitrator will ensure that all parties are treated fairly under Georgia law.
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As a Atlanta lawyer, I realize the importance of new Atlanta construction arbitration and its binding effect. The legal forum for resolving Georgia new construction disputes is usually binding arbitration and triggered by a clause in the “New Construction Dispute Resolution Section” in the “Home Purchase Agreement”. In most cases, the arbitration ruling is final. This means there is no chance to challenge the arbitration ruling, such as an appeal. In short, new home construction arbitration in Georgia is final. Should you disagree with the arbitrator’s award or judgment in your case, you are stuck with their ruling – and, no legal recourse. In your new home construction arbitration case, I know the importance and necessity of having affordable, zealous, and aggressive legal representation leading the way.

As an Atlanta construction law attorney, I have successfully represented countless clients in Georgia home construction defect arbitration cases. I have also represented countless clients in Georgia home construction defect negotiations. What is more, I have successfully brought contractors, builders, sub-contractors, and architects who are at fault, “to the table”, forced them to take responsibility and for their defective construction or design and pay damages, forced them to correct the defects at no charge to the home buyer, or both. It therefore stands that I know what you must look for in choosing a lawyer to represent you in a Georgia construction dispute. This is especially true if your dispute is to be decided through binding arbitration. Regardless, you must decide when it is the right time to seek the assistance of a Georgia construction attorney.

I would presume you found this article because you believe you have a construction defect in your home or other structure, which was caused by or through the negligence, malfeasance, or fraud of your contractor, builder, sub-Contractor, or architect. You will be glad to know, your search has landed you in the right place. The order of events in discovering and addressing a construction defect in your new home are as follows:

• You have found what you believe to be a construction defect


• You have tried to get the contractor to correct what you believe to be a defect, but you can’t get your contractor to correct the problem, or your problem gets the proverbial “band aid” placed on it

• You realize this is your house, it’s probably the biggest purchase you’ll ever make, you will call this place home, and your sixth sense tells you this is not a situation to take lightly and you should see a professional, such as a Georgia Construction Defect Law Attorney!

When you have verified that something is wrong with your home, and that the contractor, builder, sub-contractor, architect, etc. are not going to assist you in addressing or correcting the situation, it’s time to move on to more assertive behavior to protect your asset, as follows:

• Notify the contractor that there is a problem and give him one last chance

• Verify through a third party expert that the problem you believe is a home defect is the type of defect the contractor, builder, sub-contractor or architect should be responsible for, and should correct

• Verify through a third party inspector, expert, or other such person privy to the costs of correcting construction defects, and determine that the costs involved in hiring an attorney are justified. Make sure you consider the total affect the defect will have on you such as diminution in value, future sale value, the problem becoming worse over time, etc.


Now, you have properly identified and noted a construction defect for which the contractor, builder, sub-contractor or architect should be responsible, but will not correct. You have double-checked your findings through a third-party, and you have calculated that the problem is significant monetary issue to seek the assistance of a professional. Now it’s time to seek out your Georgia construction defect attorney to assist you.
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As a construction lawyer in Atlanta and a homeowner, I am painfully aware that doing any form of modification to your home is not only time consuming but expensive as well. Stress builds up even more when things do not go according to plan, and Atlanta construction disputes brought by Georgia homeowners and Georgia construction contractors can ultimately lead to lawsuits and court time. To control the amount of construction cases going through the Georgia legal system, the Georgia Right to Repair Act became effective in 2004 to facilitate the settlement Georgia construction defect arbitration, disputes, lawsuits, litigation, and other construction issues outside of court. The following steps should be followed prior to filing a Georgia construction defect lawsuit or Georgia construction defect arbitration proceeding against a contractor in the State of Georgia.

Step 1: Homeowners Understanding Of The Georgia Right To Repair Act

Prior to beginning a home improvement project, Atlanta contractors are supposed to alert homeowners to what the Right to Repair Act states and what is required of both parties if the construction does not satisfy both pairings. As an Atlanta homeowner, it is necessary to do your research before you begin any home improvement project, so you are aware of your rights. Not following the Act correctly can result in a loss for you as well.

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Construction defects can be costly to rectify and can negatively affect the value of a home and the ability to resell it (this is often called a diminution in value). Some of the more serious and difficult to fix issues stem from a defective home foundation. A home’s foundation can withstand hundreds of years of use if correctly constructed and usually can outlast the home built on top of it. However, if built poorly, a foundation can be the source of problems that threaten the stability of the home and, ultimately, the homeowner’s investment.

It is sad to know, that whether I am working in Sandy Springs as a “Sandy Springs Construction Home Defect Attorney,” the Buckhead Area as a “Buckhead Construction Home Defect Attorney,” in Fulton County as an Atlanta Construction Home Defect Attorney, in Gwinnett County as a Duluth or Lawrenceville Construction Home Defect Attorney, in Forsyth County as a Cumming Construction Home Defect Attorney, in Cobb County as an Acworth, Kennesaw or Marietta Construction Home Defect Attorney, and/or last but not least, in DeKalb County as a Decatur Construction Home Defect Attorney, the critical foundation problems I see in my Atlanta-Based Home Construction Defect Law Practice all stem from common defective construction that could have been prevented had the builder, contractor, or sub-contractor taken care in the construction of the home, and in particular, the foundation.

Unfortunately, these issues may not become known until several years after the building is complete. The result can be a nightmare scenario that leaves the homeowner unsure of what recourse is available under Georgia law. In many cases, by the time the defect is noticed, the builder or contractor responsible for the poor work usually denies that the foundation defects are their responsibility. For this reason, we also may engage various insurance companies to seek a remedy and relief for the homeowner in addition to pursuing the builder and contractor.

The foundation is especially critical because not only does it support the house, it also provides a moisture barrier that keeps the home dry and mold free. A solid foundation also insulates the home from cold and protects the home from damage caused by the ground shifting. Poured concrete reinforced by steel is thought by some experts to be a stronger material for foundations than concrete block or stone, and foundations can be built below ground on footings to provide a basement, or built as a slab. Regardless of the materials used to build the foundation, or its type of construction, all foundation types can fail for a variety of common reasons.

Improper initial site evaluation by the builder is one common cause of foundation issues. The first thing a builder must do when planning new construction is to evaluate the property’s soil type, water table, and grade. This will allow the builder to determine where to place the home on the property and what materials to use. Once that decision has been made, the soil preparation, process of laying the concrete and backfill used around the foundation all will affect the integrity of the foundation.

The foundation must be poured over solid ground that is prepared correctly, and compacted, so it does not settle and cause the foundation to crack. Properly leveling and packing crushed stone before pouring a slab, for example, will help prevent the slab from cracking. If the property contains any landfill material that may decompose over time, the soil must be reengineered to withstand the force of the foundation and the building. Additionally, concrete should be poured in one day to avoid creating a “cold joint” between fresh and semi-cured or cured concrete. This condition usually results in a cracked foundation that will leak. Concrete must also be allowed to cure slowly. Only by curing slowly will the concrete reach a strength that will support the weight of the house (around 3,000 pounds per square inch). Finally, the material used to backfill around the foundation will affect the longevity of the structure. Soils with a high clay or organic content absorb and hold water and can cause cracks in the foundation during freeze/thaw cycles when used as backfill.
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As an Atlanta, Georgia construction lawyer I stay very busy when I am preparing for a Georgia construction arbitration proceeding/hearing. Sometimes I have little contact with the outside world news. However, some matters do keep my attention in this upcoming election, such as healthcare reform, the estate tax debate, the “Buffet Rule”, and withdrawal of troops from Afghanistan — ending a long war. These changes are taking place on a national level and to some extent, a local level. It is my opinion that if the Republicans control Congress after the 2012 elections and President Obama is not re-elected, then much of President Obama’s attempted changes will be put to rest. Thus, it is understandable we are living in uncertain times wherein we do not know what or will not change. What will not change is Georgia construction law and the need to proactively protect your property/real estate interests from unscrupulous Georgia builders, contractors, and sub-contractors. Georgia construction defects will continue at a high rate as Georgia builders, Georgia general contractors, Georgia sub-contractors, and other Georgia building professionals try to cut corners to make ends meet and extend their profits. This is being done at the expense and hardship of Georgia homebuyers and new home purchasers.

Fortunately, under Georgia Construction Law, there are options to hold your Georgia builders, general contractors, and sub-contractors liable for their negligence, shoddy construction, construction defects, and more. Please read on and into my article discussing some of the issues a homeowner, buyer, or purchaser of a new home should be aware of to protect their home investment interests. I offer you the following:

In my Atlanta, Georgia construction law firm, all of the Atlanta, Georgia construction lawyers are sure that current Georgia construction law and Georgia construction defect problems (especially in big metro areas like Atlanta) are here to stay. Every building over time will see the results of wear and tear, but knowing whether the problem is an easy fix or a major reconstruction project needs to be determined before you buy. After all, construction defects can reduce the value of your property significantly. These defects can range from design issues to faulty systems to failure to meet Georgia industry building standards. Remember – not all construction defects are created equal. What may look like a simply crack in the ceiling could actually turn out to be a major architectural default or foundational defect.

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As a residential and commercial construction arbitration lawyer in Atlanta, Georgia, I can assure you that most persons entering into a Georgia construction contract do not think of worst case scenarios should any parties to the contract fail to perform their obligations according to Georgia construction contract law and construction industry standards.

• What is Georgia Construction arbitration; Is it binding? How does it work?

• What will happens if a contracting party fails to pay?


• What happens if the purchaser of contractor or builder services cannot be satisfied no matter what is done?

• What will happen if the contractor or builder neglects his duties?


• What do I do if I receive a Georgia “Right to Repair Act” Letter?

• Do I need to, and should I, send a Georgia “Right to Repair Act” Letter?

• What will happen if residential or commercial construction does not meet or exceed industry standards?

The questions and scenarios surrounding Georgia construction claims are endless as are the actual real life occurrences, which I witness happening day in and day out. To survive in the construction business world, it is best to be prepared for all possibilities. The best way to do this is to have a contract in place which fairly, resourcefully, and adequately covers almost any issues which might arise in any Georgia construction claim scenario.

For years, Georgia construction litigation was considered the more costly, more time consuming manner of dealing with disputes, and so many contracts included arbitration clauses instead. Georgia construction arbitration has many varied forms and phases, which are its counterparts to Georgia litigation. It is usually up to the parties to an arbitration, with the assistance of the arbitrator or arbitration panel, to make the decisions about pre-arbitration matters which are somewhat customized to the construction case. The most important and controversial aspect to Georgia construction arbitration clauses are that they are binding decisions and cannot be appealed to any court absent extraordinary circumstances. Even then, they are rarely overturned by a court of competent jurisdiction, but merely modified. One might say the good news in all of this is that Georgia construction arbitration can be a relatively fast and inexpensive forum for resolving Georgia construction disputes.

However, others counter this argument stating that the cost of arbitration has skyrocketed while the time it takes for a case to make its way through Georgia state courts has diminished significantly.

Two California Supreme Court cases held that the courts cannot overturn a binding arbitration award even if the arbitrator fails to follow California substantive law. As a result, it becomes literally impossible to have an erroneous decision reviewed by the courts. While this is a California case, State Supreme Court holdings often have a strong influence on the courts in other states.

Needless to say, if you enter into a Georgia Contract with arbitration, you should consult a Georgia contract lawyer with expertise in arbitration and alternative dispute resolution. This is especially true if the contract you are entering is a Georgia construction contract for new home construction, a renovation contract, or contract for any similar building, structure creation, or like-kind services.

Formerly a typical arbitration clause in a construction contract might read as follows:

All claims or disputes between the contractor and the Owner arising out of or relating to the Contract Documents, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

– American Institute of Architects specifications (formA201) –

Due to the current trends in Georgia construction law and the arbitration process itself, as an Atlanta, Georgia construction lawyer with The Libby Law Firm, I would suggest incorporating certain additional considerations into arbitration clauses when used to give the parties to an arbitration greater control. For example,

Arbitration forum. The standard dispute resolution forum in the construction industry is the American Arbitration Association (AAA). However, recently, a number of other dispute resolution service providers (e.g. Judicial Arbitration and Mediation Service “JAMS”) have developed and many attorneys now prefer them over the AAA. The choice of an arbitration forum should be reviewed in context of the cost, arbitration panel members, and forum arbitration rules. Particular attention should be paid to the forum’s arbitration rules since they are incorporated into the arbitration clause. Though, the arbitration clause may include provisions that delete all or portions of the forum’s rules.

Discovery. Most arbitration clauses limit the scope of pre-arbitration discovery. A well-drafted arbitration clause will restrict or expand discovery to correlate to the dollar value of the dispute.

Standard for Court Review of the Award. An arbitration clause can be drafted to require the arbitrators’ decision to comply with the substantive law. If the arbitrator violates such a provision, the parties to the arbitration may seek to overturn the award since the arbitrator exceeded the authority granted under the arbitration contract clause. To ensure that a court has enough information to properly review the arbitrators’ award the arbitration clause should also require the arbitrators to render a well- reasoned opinion. The opinion should include a statement of the factual determination made by the arbitrators and the conclusions of law rendered by the arbitrator. Finally, if you want the decision to be reviewed by the courts for compliance with substantive law, a provision should be included in the clause that clearly states that desire.

The best method for ensuring that a Georgia construction dispute is correctly and fairly resolved is through situation-specific clauses in properly-drafted construction contracts. The arbitration clause is one of many clauses included in a typical construction contract, and each clause can be affected greatly by recent changes in the law. It is thus wise for any construction contract to be drafted or at least reviewed by counsel before signing.

The Libby Law Firm Georgia construction lawyers can negotiate, review, and draft your construction contract in light of all of the most recent changes in accordance to Georgia construction law and arbitration proceedings, which is most favorable to you. If you are considering entering into a construction contract or amending a previous contract in light of recent changes in the law, contact our Atlanta construction contract law firm and come in for a consultation. Seeking the assistance of a seasoned Atlanta, Georgia construction contract and arbitration lawyer adept is the least you can do to protect yourself from worst case scenarios.


As a well-known Georgia construction arbitration lawyer with a perfect Avvo rating of 10, I am here to tell you that if anything can go wrong in a construction contract or in construction, it will. The very nature, imperfection, and importance construction combined with the building a home or commercial structure readily lends itself to disputes and conflict. This is likely true because for many, a home is the biggest purchase you will ever make in your life. In addition, construction is not what it seems to be on paper. It is, by its nature, imperfect and the result and methods of construction are readily subjective.

In short, protect yourself because this construction is “big deal” to parties to the contract and maintains a high rate of conflict.

If you have legal dispute or binding arbitration with a contractor, builder, sub-contractor or architect whose work does not meet or exceed Georgia industry standards, you should contact The Libby Law Firm without delay.
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As an Atlanta, Georgia construction lawyer who focuses on Georgia home construction defects, I am well aware that an improperly installed roof can quickly compromise the total structure of the building it was meant to protect. A sound roof is similar to a solid foundation; a sound roofing system will shield a home from the elements and prevent water damage, energy loss and insect and animal infestations. This is aside from the direct, more open and obvious damages an improper roof can cause.

Quite often in the case of roofing, out of sight is out of mind. It is easy to overlook hard to reach parts of a house and multi-story structures and roof slopes can make self-inspection difficult. It is well worth the money spent to have your roof properly and thoroughly checked for Georgia roofing construction defects that can cause deterioration and damage. This is true even though a roofing professional needs to be hired to perform this task.

Some roofing deterioration is a part of age, but other conditions are a result of poor workmanship and cost cutting by installers. Whenever hiring a roofing company, it is best to personally oversee any roofing work that is done. But many times this is not possible, especially when purchasing an older home that has just been re-roofed, or a new home several months after construction is complete. Once a roofing defect is suspected, it is important to retain an Atlanta, Georgia Construction Defect Attorney to help recover damages.

Understanding some of the key components of a good roofing system will help homeowners recognize the types of roofing defects that cause future structural damage.

• Decking – This is the base, into which shingles are nailed. In newer homes plywood is the most common decking material.

• Shingles – Improperly installed or sub-standard shingles will deteriorate more rapidly and shorten the life of your roof. Shingles come in many types, including asphalt, wood, metal and clay. Asphalt shingles are the most economical and common type. Bald spots on asphalt shingles indicate a loss of granules and, if the roof is newer, can indicate poor shingle quality.

• Roof Vents and Soffits – When venting is sufficient, it prolongs the life of the roof by removing heat and moisture from the attic. Improperly installed, or insufficient venting, can cause excessive energy usage (to cool and heat the home) and be the source of structural damage, such as deck warping, and mold/mildew. In cold climates during the winter, heat buildup in the attic can lead to the formation of ice dams on the roof that cause leaking.

• Flashing – Flashing, when installed properly, will stop water from entering the home around vent pipes, chimneys, skylights and where the roof might meet an exterior wall surface.

• Gutters and eaves troughs – These systems carry water off the roof and away from the foundation. A poorly designed drainage system on a pitched roof will not usually cause leaks, but can damage the home’s foundation. For flat roofs, improperly designed drainage will eventually compromise the roofing material and cause leaks.

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Finding a construction defect in your Georgia home can be a devastating experience that leads to costly repairs and a significant drop in the home’s value. This is especially true if these defects are not quickly corrected or allowed to worsen. In my Atlanta Construction Defect Law firm, I find that there are several common types of defects that occur. Design defects are created in the initial planning stages if the architect or engineer does not follow industry standards in drafting the design. Construction deficiencies are evident when the structure is built using inferior workmanship. Material defects arise when the builder uses substandard materials in the construction of the structure. Subsurface deficiencies occur when the structure’s foundation is inadequate for the type and configuration of the land upon which the structure is built.

It is critical that you seek legal counsel when faced with one of the above construction defects. A qualified Georgia Construction Defect Attorney can help you identify the best possible strategy to resolve the issue. One first step is the identification of an architect or engineer who provides litigation and arbitration support and can provide a thorough inspection. The inspection should be done as soon as a problem is noticed or suspected, but it is important to pick an appropriate professional expert to conduct do the inspection.

An experienced Atlanta, Georgia construction attorney will be able to put you in contact with an architect or engineer that is qualified to review and evaluate the type of construction defect(s) found, even if it is not immediately evident when visually inspected. Finding the right expert to provide this data is critical. Besides providing the inspection, the expert architect or engineer likely will be be providing testimony and case support during the Georgia construction litigation or arbitration process and will be asked to propose corrective measures. Under Georgia law, you do have legal recourse and can fight to restore the structure and/or receive compensation for damage.
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As an Atlanta, Georgia construction defect litigation lawyer, I place most construction defects into four (4) legally distinct groups:

Design Defects: These defects occur when a design professional, such as an architect or engineer, creates a building design, which is not within acceptable industry standards. A simple illustration of design defect is the creation of a building with a roof that results in poor drainage, inadequate structural support, or allows water penetration.

Material Defects: These occur when substandard building materials are used and/or cause damage to the building. An illustration of the use of substandard building materials would be leaking windows even though they have been properly installed (Note: Here, the window materials must be defective).

Construction Deficiencies: These usually arise from poor craftsmanship or workmanship that is not performed in a professional workmanlike manner, which is acceptable in the industry. An illustration is cracks in foundations or walls, rotting wood, electrical problems, and plumbing leaks.

Subsurface Deficiencies: These usually arise when houses are built on hills and areas were providing a stable foundation is difficult or where the builder fails to secure a suitable foundation. An illustration of this would be structural movement or shifting, building without proper grading or below grade.

If you believe your construction defects or significant problems, you should have it inspected immediately by an experienced architect or engineer. The type of inspection you should have largely depends on the type of problems you are experiencing. Hiring an experienced Georgia construction lawyer is a critical step in protecting your rights as a homeowner and assisting you in finding the right architect or engineer. Not every architect or engineer is in the business of inspecting and evaluating defective work.


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