There are two types of construction defects, latent and patent defects. Latent defects are those defects that are concealed and are often not obvious or readily observable upon reasonable inspection. Even with the most comprehensive on-site inspections, sometimes defective construction may go unnoticed. After construction is complete, Latent Defects are unknown and generally discoverable and will only appear after the passage of time.
Examples of Latent Defects are:
- Soils that were not properly compacted.
- Improperly installed flashing and/or the total lack of flashing within the building envelope assembly.
- Lack of reinforcing in structural concrete footings, walls and/or slabs.
- Lack of brick ties and/or masonry reinforcement in a brick/masonry veneer wall.
- An improperly installed weatherproofing system.
- Improperly installed stucco or EIFS exterior wall system.
- Improperly consolidated concrete.
- Reinforcement not fully embedded in the concrete structure.
Patent Defects are those defects that are known or would be readily obvious upon reasonable inspection. Examples of Patent Defects are:
- Weep holes not installed in brick veneer walls.
- Handrails omitted in stairways.
- Missing control and/or expansion joints.
- Cracking and/or signs of distress in the building envelope.
- Lack of roof drainage and/or roof slope.
- Lack of proper roof/attic ventilation.
An important distinction to understand in the analysis of construction defects is the difference between the “defect” itself and the “manifestation” of the defect, although in general terms, both the defect and the manifestation of the defect must ultimately be corrected. At times these concepts are erroneously considered to be the same and are discussed as if they were synonymous.
In fact, the manifestation of a particular defect is the apparent visible condition of the building, structure or component that gives the observer notice of the possible existence of, and most likely results from, a defect in construction. For example, a crack in a brick veneer wall may be considered to be a defect, but, in fact, it is only the manifestation of a defect. The actual defect may be the result of the failure of one or more components of the brick veneer wall system such as improperly installed or missing flashing; improperly installed or missing expansion joints; improperly installed and/or missing reinforcement; lack of or improperly installed vapor barrier; and/or the improper installation of the brick veneer wall itself.
Examples of the manifestation of a defect include:
- A total or partial collapse of the structure.
- The inability of the structure to prevent water intrusion.
- Cracking, settling or subsidence of concrete flatwork.
- Cracking, settling or tilting of walls.
- Doors that are out of plumb and do not fit into the frame.
- Windows that do not operate.
- Foundations that settle crack or subside.
The importance of distinguishing between the manifestation of the defect and the defect itself is critical as the manifestation may provide clues that a Latent Defect exists and further investigation is warranted and necessary. The manifestation of a defect may be the first indication to the owner of a potential problem. Depending on the length of a warranty and in light of the time limitations imposed by a State’s statutes of repose, quick action, notification and possible litigation may be necessary to protect the owner’s rights.