Legal Question in Construction Law in Illinois

My home has been enduring water damage since I moved in 8 years ago (original owner, I had the house built). The cause is due to the builder not correctly putting flashing or facia up where the siding meets the roof shingles. The insides of my wall are not rotted and contain mold. It was not noticeable until recently when the drywall started to show signs of water damage. I'm not sure my homeowner's insurance will cover as this.... could I file a claim against the builder?

Asked on 3/22/12, 1:54 pm

1 Answer from Attorneys

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Maybe.....

In Illinois, there is a general 10 year statute of limitations on lawsuits based on written contracts (including construction contracts). HOWEVER, there is only a 4-year statute of limitations on construction defects even if they arose from a written contract. The trick bag is that the 4-year statute starts ticking when you "knew" or "should have known" there was a problem. Put another way, if you know or "should have known" there was a problem more than 4 years ago, you are most likely stuck.

If there was an architect who drew the plans and did not specify facia or flashing (many "design-build" projects simply rely on the builder's construction expertise for these kinds of details and do not contain the details), still the architect may have some liability as well. Same statutes of limitation will apply.

So it sounds like you may still have time to sue, but time is running short and the big issue may be when you knew or should have known there was a defect. So you should have the plans from the architect, contract with the builder, and evidence of when you discovered or "should have" known of this issue, along with pictures of the inside and out, all reviewed by an attorney, because at this point if I were the builder's counsel I would certainly raise my eyebrow. Do that before you have the area repaired because a potential defense is that you "destroyed evidence" of the problems; the attorney can help guide you through that issue.

A potentially "encouraging" factor is that if the area where flashing should have been installed is covered with other materials so you wouldn't know if it was there just by looking at the area, then it could be a "latent" defect.

Honestly, however, depending on who the builder was, you'll be lucky if they're still around....and if it was a corporation even more problems. As to your HO insurance, generally construction defects are excluded, so you'd really need to talk to your agent -- if some wall covering or carpeting was ruined, things like that may be covered, but not the basic construction.

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3/22/12, 3:00 pm

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