Construction Defects

A construction defect is a deficiency in design or workmanship completed by the developer or builder, usually as a result of something being completed not to building code or industry standards, which is not the result of a failure to maintain by the association.

The association’s recorded restrictions define an owner’s responsibility versus an association’s responsibility, which in turn dictates who has standing to pursue a developer or builder for any deficiency.

An association should place the developer or builder on notice of any deficiency, after consultation with professionals such as engineers and attorneys. The nature and extent of any deficiency will dictate how far any claim will be pursued.

An association is obligated to reasonably maintain the property irrespective of any construction deficiency. That obligation may require the Association to make repairs while at the same time pursuing a claim against the developer. In doing so, the association has to be careful not to destroy any evidence that the developer may use in its defense. For these reasons, it is critical to have the assistance of professionals, such as engineers and attorneys during this entire process.

Typically, a contractor will document with photographs, video or reports any condition they encounter, in conjunction with the recommendations of an engineer, in addition to providing a developer or builder with an opportunity to perform their own inspections and documentation.

An association should notify the developer or builder of any deficiencies in writing, at such time that it becomes aware of the existence of the deficiencies. On occasion, this may require additional investigations to present all known deficiencies at the same time. The nature and timing of any such notice should be discussed thoroughly with an attorney as part of a general strategy in presenting a claim.

The expiration of an express warranty does not necessarily mean that the association does not have a claim for defective construction. The law recognizes a general claim of poor workmanship, regardless of any warranty. There are, however, strict time limits within which such general claims must be brought. 

Depending on an association’s recorded restrictions, including bylaws, typically an Association’s Board of Directors has the ability to modify existing rules and regulations, as long as they do not conflict with recorded restrictions.

On occasion, construction defect claims may be required to be submitted to arbitration, which is a process outside of the general court system where an association’s claims are determined by one or more arbitrators chosen by the parties. Typically, the arbitrators have some experience in construction defect claims. Once the arbitrator makes a decision, it becomes a “judgment” when filed with the court.