Construction Law Newsletters
ACTIONS FOR EMOTIONAL DISTRESS REGARDING CONSTRUCTION DEFECTS
The infliction of emotional distress is a cause of action in tort that seeks damages for a person's mental anguish and suffering without any physical injury or harm. The infliction of the emotional distress may be intentional or it may be negligent. Traditionally, courts have not allowed an owner to recover damages for emotional distress in actions regarding construction defects. However, more and more courts are beginning to consider these damages in litigation involving construction defects.
Construction Defect and the Right to Repair
The explosion of construction defect litigation was the catalyst for reform with respect to claims against builders, including contractors and subcontractors. With the goal of reducing litigation while balancing homeowner rights to own safe homes, a number of states passed legislation giving a builder the right to repair or cure any alleged defects. Though each state's legislation is unique, there are several key components that seem to be universal.
Development Approval Process
Construction developments generally follow a similar path on their way to final approval. The first decision a developer must make, and one that can have lasting ramifications throughout the process, is site selection. Choosing a proper location for the development requires taking into account a multitude of factors, not the least of which is the property's zoning designation, density requirements, access, and existing covenants running with the land.
Owner's Interference with Contractor's Performance
Each party to a construction contract is under a continuing duty, if not express then implied, to refrain from impeding or interfering with the other party's performance. As far as the owner's duty, he must not only not interfere with a contractor's performance but he also has the positive duty to facilitate the contractor's work where possible. Should the owner fail in this regard, he may be liable to the contractor for delay damages.
Progress Payments
Interim payments throughout construction, known as progress payments, are designed to not only ensure prompt payment to the contractor but also provide an incentive for steady and incremental completion of construction phases. Even though progress payments may be made, the owner will not usually pay one hundred percent of the amount due. Rather, a percentage of the amount due will be rendered with a small portion being withheld until final completion.
