Litigating Construction Defects in Community Association Property: Part I
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The Board of a Condominium Association or Homeowners Association has many decisions to make when it discovers telltale signs of construction defects in common property. These latent construction defects can manifest themselves in a number of different ways, including but not limited to, water intrusion, peeling paint, staining, wood rot, cracking of stucco, concrete spalling, curling shingles, or cracking or separating sealant. Construction defects can also occur in other property that may be owned by a community association or a community development district (“CDD”), such as roads, pools, tennis courts, or other property commonly owned by the association or CDD.
Once latent construction defects are identified, the Board should determine if the matter is a minor isolated problem or if the construction defect is indicative of systemic problems. The first step in making this determination is often done by consulting with a contractor that has a history of making repairs within the community or has a history with the community association manager for the community. The scope of the contractor at this stage should not be extensive and should not include any destructive testing. At this stage, the Board should only be trying to determine whether the damages are likely isolated or systemic and whether the damage and potential cause of the damage is minor or extensive. It is unlikely at this stage that the contractor will be able to make any of these determinations with certainty. However, the contractor should be able to convey to the Board some feeling as to whether the damages are likely minor or likely indicative of significant construction defects.
If it is likely that there are significant construction defects in community association or CDD property, absent the need to make emergency repairs, it is important that an attorney with experience in construction defects litigation be consulted prior to making non-emergency repairs. An experienced attorney will help the Board analyze the situation, determine whether a claim against the responsible party or parties can be made, provide guidance about the hiring of experts necessary to document the nature of the defects, and how to properly provide notice to the at fault party or parties.
Part I of this article is meant to stress the importance of identifying potential construction defects early and the importance of consulting with an experienced construction defects attorney prior to making non-emergency repairs. This article focuses on the basic steps that should be taken before the responsible party or parties are provided notice of the defects. Part II of this article will provide a more technical and detailed analysis of some of the many legal issues that often arise in a construction defects claim.