KENNETH S. KASDAN : Construction-defects attorney
Ken Kasdan, partner in the Irvine law firm of Capretz & Kasdan, began his legal career as a generalist. But that beginning was in Orange County, where lots of houses are built. Over the past decade, Kasdan’s practice has emphasized construction-defect litigation. He recently won an $8.7-million settlement from the William Lyon Co. and its subcontractors to repair a defective condo complex built by Lyon Co. in Lake Forest. Kasdan discussed construction defects and homeowner rights with Times staff writer John O’Dell.
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The building industry says it is rediscovering the importance of customer service and quality. Yet, you make your living taking builders to task for shoddy construction. Have you seen any signs that the industry is doing any better these days?
We have not observed any substantial improvement with respect to the quality of construction or attention to appropriate details. We handle a lot of cases involving things like missing fire stops, missing shear walls (specially designed walls that help transfer wind and earthquake forces from the top of a building down into the foundations) and other latent defects, which are defects that can’t be seen once the frame of a house has been covered with stucco and drywall. A latent defect is hidden and a patent defect is out in the open. But sometimes patent defects, such as cracked stucco or leaking windows, are caused by latent defects, like improperly applied lathe or nail connections that haven’t been done correctly. We see the same kinds of problems over and over, because it appears that some builders have been following the same pattern in how they build their houses.
That pattern being?
Sloppy construction, failure to properly supervise the work, failure to supervise the subcontractors, inadequate plans, inadequate attention to detail and taking shortcuts in connection with the construction.
Sounds like you are leveling a blanket indictment of the home-building industry.
No, not of the entire industry. But there are a substantial number of builders who have built large tracts around Southern California who have failed to provide adequate attention to detail. If you research court records you will find that there are builders who have never been sued for construction defects. They did it right and they cared about doing it right.
But there are other developers who frequently find themselves in litigation. The problems have been highlighted by the tremendous pace of building, especially in Orange County and the Inland Empire, during the 1980s. They couldn’t seem to build them fast enough.
But is that a bad thing? After all, you are talking about a period of intense demand, when people were clamoring for homes.
It’s a bad thing if you are going so fast you can’t inspect the work; if you’re going so fast you cannot pay adequate attention to details, and if you’re more concerned with speed and meeting quotas than with quality. What incentive do these people have to do their job properly and to see that the quality control is there when they are paid bonuses to get done on schedule and extra bonuses to get done ahead of time?
People in the industry would say the incentive is that a company has a reputation to protect and must provide quality to keep people buying its product.
But that assumes that people looking at the products are going to be able to spot defects, and the defects that really matter are often hidden.
Your cases generally come to you after owners have been fighting with the developer for months or even years. Why are some builders reluctant to own up to mistakes and fix them?
The magnitude of things. Generally when there’s a defect in one unit, its been repeated throughout. And it gets very costly to fix them after the fact. In one case, a builder left out fire stops in the walls between condo units. It would have cost less than $100,000 to do them at the time the project was built. It cost $2 million to put them in afterward.
How can a consumer check a builder’s record for quality?
You can check court records to see if and how many times a developer has been sued for construction defects. You can check with the contractors’ license board to see if it has taken any actions. And you should ask the developer if he has been sued for construction defects. He has an obligation under the law to answer that question honestly. And you should get that answer in writing.
In the resale market it’s almost automatic to have an inspection by a private home-inspection service. Should new-home buyers start requesting them too?
You could put out $500 or so for an inspection, but while what you get is appropriate for the resale market, it is not likely to discover the types of construction defects that are being experienced today in new developments. Sometimes it requires the removal of drywall to see if everything was done the way it should have been done.
So what is the home buyer’s protection?
Under California law the builder has an implied warranty that the house he is showing you is fit. It is understood that there is nothing wrong with it or he wouldn’t be selling it. The developer cannot avoid that obligation. And the California Legislature has addressed that and created a 10-year statute of limitations for the developer and all the others involved in the house, from the soils geologist to the architect and the framing contractor and the roofer.
Home buyers today typically get a builder’s warranty that covers things anywhere from a year to five years. But you’re saying they are really responsible for 10 years?
That’s right. For 10 full years from the date of substantial completion of that project. Any suit would have to be filed within three years of discovering the defect and before the 10 years was up. And the developer has ultimate responsibility for everything, including the roof and the soil and the foundation.
On his bias . . .
“I see things when they are at their worst. I see the projects with big problems and I don’t see the other ones. I don’t think every developer is terrible, but there are a great number of construction problems that aren’t being dealt with.”
On finding well-built houses . . .
“It’s not that every new house is going to fall down around your head. But people need to check out the reputation of the developer and go with developers who care about what they have done.”
On priorities . . .
“To seek compensation for homeowners for defects in their homes that originated from a developer’s negligence. The Building Industry Assn. has said it is placing a new emphasis on quality. Builders have to take that seriously.”
On the future of his building-defects practice . . .
“It’s a developing business.”
