Preserving Evidence and Complying with CDARA: Lessons on Spoliation for Colorado Homeowners
When construction defects or property damage occur, homeowners are often focused on immediate repairs and safety — and understandably so. But in the legal world, what happens in the first few days and weeks after the problem surfaces can have lasting effects on your case. One of the most critical — and often overlooked — legal pitfalls is the spoliation of evidence.
In Colorado, failing to preserve key evidence — even unintentionally — can lead to serious consequences in court. And for residential construction disputes, failing to follow the Colorado Construction Defect Action Reform Act (CDARA) can complicate matters even more.
What Is Spoliation of Evidence?
Spoliation refers to the destruction or alteration of evidence that may be relevant to a legal dispute. Colorado courts can impose sanctions for spoliation ranging from limiting the presentation of evidence to giving the jury a negative inference against the party who failed to preserve it.
For example, if a defective electrical breaker causes a fire, and the breaker is discarded or replaced before the contractor or manufacturer has a chance to inspect it, the court may allow the other side to argue that the missing breaker would have supported their defense.
Even if the homeowner didn’t destroy the evidence deliberately, courts may still sanction them if the evidence was removed or disposed of when litigation was reasonably foreseeable.
Why It Matters in Construction Defect Cases
In residential construction cases, this issue often arises when homeowners move quickly to repair a dangerous or costly defect before giving notice to the contractor or builder. This is where CDARA comes in.
CDARA’s Notice of Claim Requirements
Under Colorado law, homeowners must send a written notice of claim to the construction professional before filing a lawsuit. This notice must describe the alleged defect and give the contractor an opportunity to inspect and offer to repair it.
Failure to follow this process can limit a homeowner’s legal remedies — and can also lead to spoliation issues if the repairs are made before the builder gets a chance to inspect the work. Courts have ruled that when a homeowner makes repairs without notice, the builder can argue they were prejudiced by the inability to investigate the alleged defect firsthand.
Real-World Consequences
Courts in Colorado have imposed the following consequences in cases involving spoliation or CDARA violations:
Limiting damages to only those defects visible in photographs or documented in writing before repairs were made.
Allowing adverse inference instructions, telling the jury they may assume the missing evidence would have been unfavorable.
Permitting the defense to argue prejudice, claiming they were denied the opportunity to offer a good faith repair or rebut the claim.
Best Practices for Homeowners
To preserve your legal rights and avoid unnecessary hurdles in court:
Document everything — take detailed photos and videos of the issue as soon as you discover it.
Don’t discard or alter defective components — even if you're bringing in professionals to make temporary repairs.
Notify the builder or contractor in writing, following CDARA’s process before initiating any permanent fixes.
Work with a lawyer early — an experienced construction defect attorney can help you navigate the notice process and ensure that your claim is protected.
Conclusion
When it comes to construction defects and property damage, acting quickly is important — but so is acting strategically. Preserving evidence and following CDARA’s notice requirements can be the difference between a strong claim and a compromised one.
If you're facing a potential construction defect, don’t wait until it’s too late. Contact our office today for a free consultation and learn how to protect your property — and your case.
The information provided on this website is for general informational purposes only and should not be construed as legal advice or legal opinion. You should not act or refrain from acting on the basis of any information provided on this website without seeking legal advice from an attorney.