How does our association know if there are any construction defects once the developer has transferred the property to the association?

It would be nice if every condominium building, townhome or single-family home came with a "check engine" light . . . or maybe a "check building" light. But they do not. Even if such a light came on, what does it mean? Furthermore, looks can be deceiving and to a savvy developer looking to sell units, looks are meant to be deceiving. So how does a condominium owner association ("COA") or homeowner association ("HOA") know if there are any defects in the construction of the common elements of the improvements? Simple . . . they ASK.

Who to ask is the important question. The best way for a COA or HOA to find the answers to these questions is to ask a qualified forensic engineer. Selecting the best engineer is not easy. Definitely, it should not be based solely upon the lowest bidder. And it is also not a good idea for a COA or HOA board to take on the selection process on its own.

ASK FIRST of an experienced construction defect attorney, who they would recommend as an engineer to take on the investigation of the common elements of the property. The construction defect attorney can identify the engineer who they believe (based on their experience with various engineers over their years of practice) would best serve the COA or HOA to: investigate the type of construction (roof, stucco, windows, roads, drainage issues, etc.); identify the defects and any code violations in the construction; prepare a detailed written report with relevant photos of the defective conditions; and if necessary, serve as an expert witness in any action to recover for the defects. You want an expert that if called to testify in a deposition or at trial, can communicate clearly and in simple terms, and be interesting (no one wants to sit through a boring recitation of barely understandable technical information). The best expert engineer is also one that does not qualify his or her answers so as not to offend who they believe may be their next client, or who is afraid to take a clear position on their findings of the defective condition and appropriate repair. The wrong engineer can be, and usually is, a case-killer and a waste of association funds.

The forensic engineer can identify defects by a visual inspection by seeing things that the average person would not recognize. Cracking stucco is not always just a stucco problem or it may not be a stucco problem at all.It could be a framing problem causing movement in the building, or it could be a roof or window problem letting water intrude into the building causing the stucco to bulge and crack.

If areas of construction appear to be defective, in the opinion of the engineer, then a more intrusive investigation into the building may be prudent. This is where the engineer would deconstruct portions of the building in a peel the onion fashion, revealing the manner of construction to see if it was properly or improperly constructed, as well as to reveal any hidden damage. This is sometimes referred to as "destructive testing."

It is very important to have the construction defect attorney involved early on and throughout the engineer's investigation. The construction defect attorney can assist in what information is necessary for the engineer to obtain to support any action to recover for the defective conditions. Selecting a good construction defect attorney who brings on a forensic engineer who can serve to accomplish what has been discussed above, can usually facilitate a beneficial settlement for the COA or HOA without having to go to trial. The wrong "team" can lose your case before it ever sees the light of day, leaving the association member/owners to pay to correct the defective conditions, which could run several millions of dollars in some cases.

Any HOA or COA that is either new and at turnover stage or that is under 10 years old (a statute of repose period where, upon expiration, no further claim may be brought), should consult with an experienced construction defect attorney to determine if having an investigation is in the best interests of the association.

Salvatore G. Scro, Esq. is a board-certified Florida construction lawyer managing the complex litigation section of Tannenbaum Scro Lemole & Kleinberg. He represents clients involving various areas of litigation, real estate, and business matters including civil, construction defect, real estate and business litigation, real estate transactions and closings, contract, and business matters. 

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