Neither owner nor tenant desires construction related litigation, but should it arise, here are some tips for preserving evidence and moving forward.

Every major construction project comes with risk, whether it’s a warehouse build, a multifamily development or a major renovation. Parties tend to be aligned when things are proceeding as planned. But when something goes wrong—cracked concrete, water intrusion, systems that don’t perform as expected—those interests can quickly diverge.

Property owners are often caught in the middle when construction defects surface. They’re expected to act quickly to limit damage and costs. But they also have legal obligations to preserve evidence and allow potentially responsible parties, such as contractors or designers, to observe testing, demolition and repairs. Additionally, owners often have duties to lenders and investors to fix problems promptly and pursue claims against those responsible. Meanwhile, contractors and other parties have obligations of their own—not to interfere with repairs and not to delay mitigation efforts while investigations are underway.

What follows will examine how those competing responsibilities play out in construction defect disputes.

Understanding Evidence Spoliation

In simple terms, spoliation means destroying or failing to preserve relevant evidence when you know—or should know—that a legal claim is likely. For owners or parties in control of a property while defect testing and repairs are underway, the risks from spoliation vary. At a minimum, preserving evidence presents a major logistical task, from documenting conditions to saving removed materials and granting site access for other parties to review the issue. In the worst case, a construction defect claim can be thrown out of court if evidence is destroyed. A judge or arbitrator may also impose penalties such as limiting what evidence may be used later, including exclusion of the forensic investigation costs and damages associated with repair, during trial or arbitration.

The duty to preserve evidence only arises when a party knows or reasonably should know that a legal claim is likely, and that the evidence is relevant and material to that claim. If a reasonable person would expect a dispute based on the severity of the incident and other attendant circumstances, the duty to preserve evidence is triggered. If evidence is not preserved by party to the dispute, courts then weigh that party’s degree of fault, how much the missing evidence impacted the other party’s side, and whether a lesser penalty can address the problem fairly and deter future acts of spoliation.

Life Safety Comes First

When defects are discovered in a new building, an owner’s first obligation is safety. Bring in the appropriate experts, like structural or fire protection engineers, and conduct immediate inspections. Time is critical: An owner must make an initial determination about whether the defects could endanger occupants or other parties, such as construction workers, site visitors or passersby.

At the same time, the owner should make a reasonable attempt to notify potentially responsible parties, giving them the opportunity to observe the safety inspections while stressing the urgency of those parties mobilizing to make their own inspections. All involved parties should carefully document inspection conditions with photographs, recordings or notes, including date and time stamps as applicable. Once it’s confirmed that there are no immediate safety issues, the owner can then follow a detailed and orderly process to complete the remainder of any forensic or remedial activities.

The Gold Standard of Repairs: Transparency and Communication in Remedial Efforts

The first step when a property owner becomes aware of defects and that evidence must be preserved should be to identify and notify all the constituents on its “side”—such as property managers, forensic engineers or remediation contractors. The owner should put those parties on written notice that a formal plan is forthcoming that will outline evidence preservation obligations and how to proceed with repairs.  

The goal: Provide a clear evidence-preservation framework at the outset of the project and share it, along with the intended plan, with potentially culpable parties such as contractors, subcontractors, material suppliers and design professionals. This agreement should protect everyone’s right to inspect and test, while also making clear that inspections can’t unnecessarily disrupt the owner’s repair and damage mitigation efforts. Parties should be expected to coordinate their forensic teams to observe work in accordance with the agreed schedule and mobilize quickly—within 72 business hours or a similar timeframe—when new defects are discovered, to avoid undue delay to the owner’s repair progress.

Engineers and contractors should issue an initial schedule with weekly rolling three‑week updates, which the owner can share with other parties and document. Repairs may need to start and stop if new defect evidence is found or to accommodate planned inspections. Remedial contractors in particular should price the project in a way that “bakes in” such delays, so that the owner is not constantly bombarded with change orders and to mitigate contractor friction.

Additionally, the engineer or contractor must pause and notify the owner when areas of the property are opened up either for the forensic or remedial process and when new evidence of defects is discovered. The owner in turn should provide immediate written notice of a new defect and opportunity to observe or inspect to the potentially culpable party.

On complex projects, there may be numerous potentially responsible parties. All should work together and cooperate with the owner’s reasonable repair timeline. Delaying inspections or refusing to coordinate doesn’t stop repairs—it just creates problems and risks negative attention from a judge or arbitrator later.

Tenant or Resident Considerations

In occupied buildings, both the forensic and remedial activities must take into account tenants or residents that will have to be relocated while forensic and remedial activities take place. For example, in a multifamily project with a leaky roof, repairs will typically be performed in planned “stacks,” where tenants in a vertical stack of units—such as from floors one through four—are relocated. All parties then conduct phased forensic and remedial work according to a set schedule, complete that stack and proceed to the next.

The right of tenants, particularly when it is their place of residence, underscores the importance of cooperation amongst parties. Repairs and other forensic activities should focus on minimizing disruption to tenants and maximizing party cooperation. Timely issuance of and adherence to weekly look-ahead and repair schedules is crucial.

Addressing construction defects involves a careful balancing act between preserving evidence and preserving the owner’s right to repair. Owners must act decisively and swiftly when defects are discovered, especially if safety could be affected. At the same time, they must follow a clear, disciplined process for documenting conditions and preserving evidence so they don’t jeopardize their legal rights.

While risk cannot be fully eliminated, by putting a thoughtful evidence‑preservation plan in place and following it consistently, owners put themselves in a strong position to show they acted reasonably, limited damage and protected their ability to pursue claims against potentially culpable parties if needed.

Contractors, designers and other potentially responsible parties also need to understand these same pressures, cooperate with reasonable repair schedules and document their own observations. When everyone works within a shared framework, disputes are easier to manage—and projects are more likely to move forward without unnecessary escalation.

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