By Michelle Tomko
It’s hard to imagine a building of any size without some kind of issue. Cement cracks. Water finds a way in. Stains form. But, when you notice things aren’t exactly in plumb shape with your association, how do you know if that’s regular wear and tear or a construction defect? In other words, should you be settling for the house settling? To figure this out Lynn A. Voorhees, Director of Community Association Services at DW Smith Associates answered questions about construction defects.
What are some common construction defects found in community associations? “Typically, water infiltration is the biggest, but it doesn’t mean that is the only one. Open siding, improperly flashed components, improperly installed siding, and improperly installed roofing are also problems”, said Voorhees. “There’s improper installation of cultured stone, it’s not supposed to be installed below grade because it wicks moisture up. Cultured stone should have a weep screed, it’s required to have a certain amount of drainage behind it. Things like that would all be considered construction defects,” she continued.
What are the signs that construction at an association may have a defect? “It depends. Usually you will see staining where they put penetrations in the building like windows or doors. You’ll look at the bottom corners and you’ll see staining,” Voorhees said. “If they haven’t put kick out flashing on the roof between the roof and the siding material, you’ll see, with any masonry product, staining going from the gutter down. That’s actually getting at the sheathing which will cause damage.”
When looking for defects Voorhees pointed out that you are often looking for crevices that water can get into. “You need to look for caulked joints. If there’s missing caulk at any joints or any gaps between dissimilar materials, if they are not caulked closed and maintained, then water will get in there as well,” she explained. Water is not your friend when it comes to construction, is it? “I hate water. I really do. That is your biggest problem in any transition in any construction deficiency,” she said.
Voorhees used caulk as an example of a defect vs. a maintenance issue. “If caulk was originally installed, it may just be a maintenance issue. However, if the caulk was installed and it kind of fell in, it means that the gap was too large for just caulk. It should have received a backer rod and then caulk. The missing backer rod, which would keep the caulk from falling into the gap, is a defect. Whereas if the caulk is there but it’s just drying and getting old and opening, that’s a maintenance issue,” explained Voorhees.
What kind of documentation, record keeping, or process do you need for documenting defects? “You need to do invasive testing. You would actually take the component apart. You do moisture testing, which will tell you where to take it apart to find out if there is any damage being caused,” she said.
Voorhees went on to say that often associations will make assumptions that are not helpful if an issue goes to litigation. “Many associations will say ‘it’s leaking below all the windows and it’s on two buildings.’ You can’t litigate based on it being at two buildings. You can’t just extrapolate because the defense is always going to go to the rest of the buildings and say, ‘look it doesn’t exist here’. So you need to do your due diligence. You actually have to test at all buildings and all the possible locations,” said Voorhees.
She gave another example. “You can’t assume it’s going to be the same. For instance balconies. Sometimes you can see the flashing at the balcony coming out over the ledger board. Other buildings you can’t. But unless you actually go up top, sometimes the flashing just doesn’t go beyond and down the ledger board. It’s a defect, but not of the same concern as if it was just missing and water was going down behind the ledger board. You really have to be careful. You have to know what you are looking at and you can’t assume. You always have to prove. You’ve always got to do your due diligence. You have to do invasive testing to prove that what you are saying is wrong really is. There has to be a damage to find as well,” Voorhees continued. She said that you have to ask the question “Is it really causing damage?”
So you could have a defect but if it is not causing damage it’s no harm no foul? “You can’t collect on the damage or assume that’s there’s always going to be damage unless you open it up and find the damage. Most of the time there is,” she said.
Things can get a little dicey when a community is in transition as well because of the building time. Voorhees said “Years ago when they built communities and they did transitions; they were built within a two-year period. They have their 75% ownership so then they go out and get a transition. The problem there is there’s probably a lot of latent defects you can’t find right away because they are not happening. You can’t prove that ‘because of this there will be damage.’ But there is a big difference going forward with a case in an older community just finished being built out and it’s already ten years old. You’ll already have your damages there.”
What is the best way to communicate with an association about their construction defects if some are found? “Usually through the manager. Usually there will be a transition committee or the board will act as the committee. They will put together a list of perceived problems. Because what a homeowner may perceive as a problem may not actually be a true problem. It may be maintenance. We usually get a list of those from them. We also provide a questionnaire that the association can modify to send out to their unit owners to see what their perceptions are. We will review those to see if there is anything there. Most of the time we pick up on items,” said Voorhees.
Should the contractor always communicate with the same representative from the association, such as the property manager or a specific board member? “Yes. Sometimes it’s the chair of the transition committee. Most of the time it’s the manager,” she said.
What should a committee or the property manager do once deficiencies are found? According to Voorhees “Once you have gone through and done your investigation and you found your construction deficiencies, you know what they are, typically they are done. You found them. You just need to make sure you stay on top of them. In other words, there may be something that was not evident and didn’t show any signs of anything being a problem for years and years. But that doesn’t happen that often.”
How does human error play into construction defects? “You will have different crews. You will have members of a crew change, so anything can happen,” she said. “Because you don’t know that particular crew member, or that guy might not have done his work that day. There are things that go wrong,” she added.
What happens when you are required to serve as an expert witness in a lawsuit? “You are usually asked to provide expert reports, outline exactly what the deficiency is and how you found it. It’s all very factual. You have to make sure everything is there. All your I’s are dotted and your T’s are crossed. Then you typically get deposed. If it doesn’t settle, you will need to either testify at mediation, arbitration or do testimony at a trial,” she explained.
What kind of questions will a construction litigation attorney have for an engineering contractor? “One of the biggest questions they have is ‘how much’,” Voorhees said. Other questions that are often asked are: “You saw this? You found what? What does that mean? What does the code say? What is the deficiency? What is the standard? Is it poor workmanship? Is it industry standard? Was is not done to manufacturers specifications?” Voorhees listed.
Voorhees used a specific example of stucco damage to explain litigation. “You have problems with your stucco. Does it all have to come down? Can it be repaired? How much is it going to cost? Because before you go to court, you’ve got to make sure that the cost of litigation isn’t higher than the amount of money that you are going to get back,” she said.