LEGAL GUIDE
Written by attorney Jordan B. Dorrestein | May 17, 2011

Expansive Soil Damages in Colorado: Know Your Rights

With the many natural wonders of Colorado’s geology and topography also come certain natural hazards. Amongst those hazards are expansive soils. In a code section titled “Definitions pertaining to natural hazards," Colorado law defines expansive soils as “soil and rock which contains clay and which expands to a significant degree upon wetting and shrinks upon drying." C.R.S. §24-65.1-103. Homes built upon such soils can suffer great damage from the shifting, movement, expansion and contraction continuously occurring in the ground around them.

Under Colorado law, developers and builders are required to disclose to buyer’s whether there is a “significant potential for expansive soils" on their property at least two weeks before the real estate closing takes place. C.R.S. §6-6.5-101.These disclosures often come in the form of a written soils report that can be difficult, if not impossible, for the average homebuyer to understand. If a builder or developer fails to disclose, they can be fined up to $500.00 and potentially have significant liability to the purchaser of the home. Despite this, many homeowners do not know whether or not their home is built on expansive soils until it is too late. Indeed, it sometimes can be years after the sale of a home that signs of structural damage become evident. Some of those signs include, but are certainly not limited to:

  1. Foundation and drywall cracking;
  2. Joint separations;
  3. Sticking doors and damaged door frames;
  4. Fractured and cracked walls; and,
  5. Displaced and/or heaving slabs.

These five items are some of the most commonly seen indications that the builder of the home did not take proper precautions for building in expansive soils. The unfortunate consequence for the owner of the property is that the home may need several costly repairs that, more likely than not, will not be covered by insurance. Fortunately, Colorado law protects homeowners.

The Colorado Construction Defect Action Reform Act (commonly called “the CDARA statute") governs all claims for construction defects and damages between homeowners and construction professionals. The term “construction professional" is defined very broadly under the Act to include “an architect, contractor, subcontractor, developer, builder, builder vendor, engineer, or inspector" whether they did the physical construction of the property or only aided or supervised in the construction. Accordingly, homeowners are afforded a great deal of protection for all aspects of the work performed in the building of their home.

The Act was designed to allow homeowners the opportunity to open the doors of communication with the builder of their home to come to an agreement about fixing defects without resorting to costly litigation. This is facilitated through a specific “Notice of Claims" process. The homeowner can get that process started by sending a written notice of the defects to the construction professional who built the home. After that, the construction professional has 30 days to come to the property and investigate the damages. After the inspection, the construction professional has 30 days to submit an offer to settle the claim. The offer could be monetary or an offer to perform corrective work to the home. Once the offer is made, the homeowner has 15 days to decide whether to accept. It is only after this 75 day notice of claim process that an actual lawsuit can be commenced.

Used effectively, the Notice of Claims process under CDARA can help Colorado homeowners resolve damage to their property related to building in expansive soils without resorting to costly litigation.

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