Counter-arguments when builders and contractors deny responsibility for defects
Builders and contractors often use the same arguments to avoid responsibility for construction defects. Understanding these defenses and their weaknesses helps you build a stronger case. California's SB-800 (Right to Repair Act) provides significant homeowner protections.
The contractor claims the statute of limitations has expired and you can no longer sue.
"This is a latent defect that was not discoverable through reasonable inspection until [date]. Under the discovery rule, my claim is timely because I filed within 3 years of when I discovered/should have discovered the defect. The 10-year period from completion has not expired."
The general contractor blames a subcontractor for the defective work, claiming they're not responsible.
"Under Civil Code § 936, as the builder who sold me this home, you are directly liable for all construction defects regardless of who performed the work. Your contractual relationships with subcontractors do not diminish your liability to me as the homeowner."
The contractor claims you caused the problem through improper maintenance, alterations, or misuse.
"You have not provided any evidence that my actions caused this defect. Under Civil Code § 944, you bear the burden of proving any affirmative defense. My expert has confirmed this is a construction defect, not homeowner damage. I used the property in a normal manner."
The contractor claims the work passed building inspection or meets minimum code requirements.
"Passing building inspection does not establish that the work was performed properly. Building code sets minimum standards, not quality standards. Under Civil Code § 896, you're liable for failing to meet the SB-800 building standards, regardless of code compliance. The implied warranty of habitability requires workmanlike construction beyond code minimums."
The contractor claims the 1-year warranty or home warranty has expired, so they have no further obligation.
"The expiration of your express warranty does not extinguish my statutory claims under Civil Code § 896-945. For this type of defect, the SB-800 limitation period is [X years]. Additionally, my claims for breach of implied warranty and negligence are independent of your express warranty."
The builder claims you didn't follow the SB-800 pre-litigation notice requirements before suing.
"I provided/am now providing the required notice under Civil Code § 910. [If applicable: You failed to respond within the statutory timeframe, which satisfies the procedure.] I have given you the opportunity to inspect and repair as required by law."
If you're considering litigation, send the SB-800 notice now. The procedure must be followed before filing suit. This isn't a defense that defeats your claim - just a procedure you must complete.
The contractor claims your later modifications or alterations caused or contributed to the defect.
"Any modifications I made did not affect the [roof/plumbing/foundation/etc.] where the defect exists. You have not provided any evidence that my work caused this defect. My expert confirms the defect is in original construction, not any area I modified."
The contractor blames an earthquake, flood, or other natural event for the damage.
"Normal [rain/wind/weather] is not an 'act of God' - proper construction is designed to withstand these conditions. The fact that [water entered/damage occurred] demonstrates a construction defect. Other homes in my area did not experience this damage from the same event."
The contractor claims your repair estimate is inflated or unreasonable.
"I have obtained estimates from [number] licensed contractors, all indicating similar repair costs. My estimate reflects the actual scope of work needed to properly repair the defect, not a temporary patch. Under California law, I am entitled to be made whole through proper repair."
The contractor claims you must arbitrate rather than sue because of an arbitration clause in the purchase contract.
"I am reviewing the arbitration provision and reserving my right to challenge its enforceability. [If challenging: The arbitration clause is unconscionable because it was buried in a lengthy contract, presented on a take-it-or-leave-it basis, and contains one-sided provisions favoring the builder.]"
Arbitration clauses are complex. Consult with an attorney before agreeing to or challenging arbitration. Missing deadlines to object can waive your rights.
Generate a professional demand letter, CA court complaint, or arbitration demand