Pieter M. O’Leary – November 1, 2013
Determining whether a construction defect is patent or latent plays a significant factor in determining if a claim may be barred by a statute of limitations.
1. Patent vs. Latent Defect
Patent and latent defect issues arise in construction defect litigation. A latent defect is a construction defect that is present but not readily detectable even with reasonable care. Stated simply, a latent defect is a hidden defect. On the other hand, a patent defect is a construction defect that is “readily observable or evident” (not hidden). Although the difference between latent and patent defects may seem simple at first, distinguishing between the two can often be difficult and sometimes highly contested by the various parties in a lawsuit.
2. Patent Defect Test
The test to determine whether a construction defect is patent is an objective test that asks, “whether the average consumer, during the course of a reasonable inspection, would discover the defect.” What constitutes a reasonable inspection in determining the type of defect is determined from the totality of circumstances. If a reasonable inspection would reveal only the manifestation of the defect, and not the cause, the defect is not necessarily patent (i.e. broken pipe resulting in mold). The question to be answered is whether the average consumer, during the course of a reasonable inspection, would discover the defect.
3. Statute of Limitations
The purpose of classifying a defect as either latent or patent is to determine the appropriate statute of limitations which applies to a particular claim or defect. A statute of limitations cuts off the exposure of builders, developers, etc. to construction defect claims / lawsuits after the passage of a specific period of time. If a defect is hidden and not detectable (latent defect), a longer period of time exists for the claimant to file a claim because he/she would not know about the defect. However, if a defect is not hidden and is readily observable and evident (patent defect), a shorter time period exists for a claimant to file a lawsuit. In California, the Legislature has enacted a series of statutes that bar claims / lawsuits alleging defects in order to protect builders, developers, etc. as well as encourage construction. Additionally, the Legislature wants to encourage people to assert their claims in a timely manner to avoid old claims. Below are two examples.
4. California Code of Civil Procedure § 337.15 (latent defect)
For example, California Code of Civil Procedure § 337.15 (latent defect) says in relevant part that “. . . no action may be brought to recover damages . . . to real property more than 10 years after the substantial completion of the development or improvement for any of the following: (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property or (2) injury to property, real or personal, arising out of any such latent deficiency. ‘Latent deficiency’ means a deficiency which is not apparent by reasonable inspection. This section shall not apply to actions based on willful misconduct or fraudulent concealment.”
5. California Code of Civil Procedure § 337.1 (patent defect)
An additional example, California Code of Civil Procedure § 337.1 (patent defect) says in relevant part that “. . . no action shall be brought to recover damages . . . more than four years after the substantial completion of such improvement for any of the following: (1) Any patent deficiency in the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to, or survey of, real property or (2) Injury to property, real or personal, arising out of any such patent deficiency. As used in this section, ‘patent deficiency’ means a deficiency which is apparent by reasonable inspection.”
6. Conclusion
If you believe you have a construction defect claim, you should consult an attorney immediately. There are various specific exceptions to the rules and it can be confusing trying to distinguish between patent and latent defects. Additionally, if more than one defect is present; multiple statutes of limitation can be “ticking” at the same time further complicating the matter.
via Patent vs. Latent Defects in California Construction Defect Litigation. – Avvo.com.