Construction Defects: Latent vs Patent
Construction defects can arise at any time, sometimes years after the project’s completion. Defects are either patent or latent, and can involve issues with the project’s design, materials and supplies, or services rendered. While both types of defects can be very damaging, the law treats them differently.
PATENT VERSUS LATENT DEFECTS
A patent defect is open and obvious, or can be discovered after inspection. A latent defect is a defect that is hidden or concealed, and which is not discoverable by reasonable inspection. A latent defect becomes patent when it is discovered or should have been discovered. Whether a defect is patent or latent will be decided on a case by case basis, although Florida has determined that certain defects, such as leaky roofs, are necessarily patent.
Determining when a defect becomes patent is important because it impacts the statute of limitations, which is the deadline for bringing a lawsuit. The deadline for breach of construction contracts is four years from the time the defect was discovered but in no event more than 10 years after the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect or licensed contractor and his or her employer, whichever defect is latest. Even if the defect is discovered after the expiration of a warranty, the limitations period does not begin to run until the defect is discovered.