New condominiums and homeowner associations often suffer the effects of construction defects on common elements. In these instances, Boards have the dual responsibilities of immediately correcting construction defects that pose a hazard to residents while also preserving the right to recover the cost of repairs.
Too often common interest community Associations rush to make repairs and destroy evidence that will later be needed to recover damages. For instance, if a condominium is faced with sinkholes and it immediately has the sinkholes repaired without properly protecting the evidence and providing notice to the developer, the Association’s right to recover the costs of sinkhole remediation may be lost. Instead, the Association should block off the sinkhole and give notice to the developer of the defect/issue. The Association should also retain an expert to inspect the area, take samples, and preserve evidence. The developer should be notified before any remediation thereafter begins. However, action should not be delayed if the risk of personal injury is present.
Another common problem is when an Association discovers continuous leaks around window units of a particular home design. Often the Association will have its maintenance personnel attempt to repair the windows but the leaks still occur. After repeated attempts to remedy the problem by maintenance personnel, the Association provides notice to the developer of the problem. Unfortunately at this point, when experts come to review the window unit, the repairs and changes that had previously been made have effectively erased the cause of the original leaks. The Association will now have significant difficulty in its attempt to prove that any defect was due to negligent design and/or construction.
In situations regarding construction defects discovered early in the life of an Association, a general rule is to immediately give the developer notice of such defect and advise your construction experts to take all reasonable steps to collect and maintain evidence of the construction defect. This way valuable evidence is preserved.