Construction Defect Claims in Massachusetts: What Homeowners and Contractors Need to Know

By a Massachusetts Business Attorney · Construction Law

Whether the issue is a crack in the foundation, a leaking roof, or tile work coming loose…when something goes wrong with work that was done on your property, you need to understand what kind of case you have and what your options are. 

Construction defect claims can be straightforward or incredibly complicated depending on what went wrong, when the defect was discovered, and what the contract says. Let me break down the different types of defects and the legal theories you can use to recover.

Types of Construction Defects

Construction defects come in three basic forms.

Workmanship defects are failures to perform the work according to the plans and specifications or according to industry standards. The contractor knows what the work should look like and how it should be done, but does it wrong anyway. The roofer uses the wrong material. The electrician doesn’t ground outlets properly. The foundation concrete isn’t mixed correctly. These are failures of execution. The work was supposed to be done one way and was done another way.

Design defects occur when the design itself is flawed or doesn’t meet code requirements. The building envelope design doesn’t shed water. The structural design is insufficient for the loads it’s supposed to carry. The design violates building code. These defects often originate with the architect or engineer, not the contractor, but the contractor may be liable for failing to point out obvious design problems or for proceeding with a design the contractor knew was flawed.

Material failures are when materials used in the work are defective or unsuitable for the application. The roofing material degrades prematurely. The concrete has a high water content and deteriorates. The paint isn’t the grade specified. Someone didn’t use what was specified or what’s appropriate for the application.

In real-world cases, you often have a combination. A roof leaks because the design is inadequate, the contractor used the wrong material, and the contractor didn’t install it correctly.

Breach of Contract vs. Negligence vs. Warranty

Here’s where it gets complicated. You can sue a contractor for the same defective work under three different legal theories, and each one has different requirements and different damages.

Breach of contract means the contractor failed to perform what the contract required. If the contract says “install Class A roofing material” and the contractor installed Class B, that’s breach of contract. You can recover the cost to repair the defect, plus any consequential damages caused by the defect.

Negligence means the contractor failed to perform the work with the skill and care that a reasonable contractor would have used. Even if the contract doesn’t spell out every detail, there’s a standard of care that applies to all contractors doing that type of work. A roofer must install a roof in a manner that sheds water. An electrician must ground outlets. These are industry standards. If the contractor falls below that standard, that’s negligence.

Breach of warranty is when the contractor (usually implied by law, sometimes expressed in the contract) warrants that the work will be performed in a workmanlike manner and will be fit for its intended purpose. The work should be safe and function as intended. If it doesn’t, that’s a breach of warranty.

The difference between these theories matters because the burden of proof differs, the measure of damages differs, and the statute of limitations may differ. Some may be barred by contract language that others aren’t.

As a homeowner, you generally want to plead all three theories. As a contractor, you need to understand which theory is most likely to apply to the defect alleged.

The Critical Statute of Limitations: Don’t Wait Too Long

Here’s where homeowners get into trouble. Massachusetts General Law Chapter 260, Section 2B sets a 6-year statute of limitations for actions for breach of contract relating to construction. This runs from the time the defect is discovered or reasonably should have been discovered, not from the time of substantial completion.

But here’s the complication: this doesn’t apply to all construction cases. If you’re suing under a negligence theory, the statute of limitations is generally 3 years from the time you discover or should have discovered the injury.

The question of when you “should have discovered” the defect is crucial. You don’t have to have noticed the crack. You just have to have had a reasonable opportunity to discover it. So if a crack appeared two years after the work was completed, the clock starts ticking at two years, not at completion.

My advice to homeowners: if you suspect a construction defect, don’t sit on it. Get an inspection. Document what’s wrong. Understand when the defect probably occurred or was discoverable. Once you know there’s a problem, consult an attorney. The statute of limitations isn’t forgiving, and missing the deadline means losing your right to recover entirely.

My advice to contractors: document the completion date, any substantial completion milestone, and any final walk-throughs. Know when you finished the work. If a defect claim comes in years later, the timing of discovery matters.

The Role of Expert Testimony

Almost every construction defect case requires expert testimony. You need someone who’s qualified to testify about whether the work meets the applicable standard of care. That person is usually a licensed architect, engineer, or experienced contractor in the same field as the alleged defect.

The expert examines the defective work and testifies about:

1. What the standard of care requires for that type of work
2. Whether the work meets that standard
3. What caused the defect
4. How to repair it
5. What it costs to repair it

Without expert testimony, most construction defect cases fail. A homeowner can’t just say “the roof leaks, so it’s defective.” A roofing expert has to testify that a properly installed roof of that type wouldn’t leak, and explain why this roof does.

This is expensive. Expert witnesses charge $5,000 to $20,000 or more to investigate, prepare a report, and testify. That cost is why many construction disputes get resolved through settlement rather than litigation. Both sides understand that trial will be expensive, and both sides have to hire experts.

If you’re a homeowner with a defect, budget for expert fees. You may recover those costs if you win, but you have to pay upfront.

If you’re a contractor, expect to have experts too. You’ll need experts to defend against the homeowner’s expert, to explain that the work met the standard of care, or to explain that the defect was caused by something other than your work.

Contractor Liability Under 93A

Here’s something many contractors don’t realize. If a homeowner can prove that the contractor’s conduct was deceptive or unfair in the construction context, the homeowner can sue under M.G.L. c. 93A (the consumer protection statute) and recover treble damages.

What’s considered “unfair or deceptive”? Examples include:

1. Misrepresenting the quality of materials
2. Hiding defects you knew about before handing over the property
3. Fraudulently concealing inferior work
4. Making false statements about the scope of work or what’s included
5. Promising to warranty work and then refusing to honor the warranty

If the homeowner wins a 93A claim, they recover three times the actual damages, plus attorneys’ fees. So a $10,000 defect that was the result of deceptive conduct could turn into a $30,000 judgment plus fees.

For contractors, this is why transparency and honesty matter. Don’t misrepresent what you’re using or what you’re doing. Don’t hide problems you discover. If you can’t complete the work as promised, tell the homeowner before you walk away.

For more on consumer protection claims, see my article on Chapter 93A unfair and deceptive practices.

What To Do If You Discover a Construction Defect

If you’re a homeowner and you discover construction defects:

1. Document it with photos and written notes
2. Get a professional inspection from a licensed architect, engineer, or contractor
3. Get an estimate for repair
4. Contact the contractor and notify them of the defect
5. If the contractor refuses or the defect is too serious to wait, consult an attorney

If you’re a contractor and a homeowner claims your work is defective:

1. Take it seriously
2. Investigate and determine whether the defect actually exists and what caused it
3. Review the contract and any warranty language you provided
4. Consider whether you should repair the defect
5. If you believe the claim is unjustified, consult an attorney before responding

For more on how to structure contracts to minimize defect disputes, see my article on construction contract provisions. If you’re dealing with a defect claim right now, don’t ignore it.

Call my office at 978-273-8337 or visit gaudetlawoffice.com to schedule a consultation.

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ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.