December 11, 2009

You face a dilemma when your owners encounter problems that might be the tip of a construction defect iceberg. How can you complete necessary repairs quickly while still preserving any claims you may have against your developer? This week's tip explores that difficult problem.

You'll need to hire a consultant to investigate the damage, and Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations, recommends that you be exceptionally choosy in finding the right one. "If a consultant is experienced in construction defects, he'll understand that he and the association should take pains not to destroy any evidence of the defect," Matt explained.

"Some people try to rely on a standard home inspector you'd use when you're purchasing a home. I'd question that because home inspectors are generalists, and they're not trained to perform invasive investigations. In addition, their agreements are often full of disclaimers. On their face, inspectors often state that they're not going to perform any inspection that requires them to move objects or find hidden problems."

The key is preserving evidence so that you can pursue a claim against your developer if warranted. "Don't fix problems right away without providing some notice to the developer and contractors that preformed the work," advises Matt.

"Even if it's an absolute emergency, providing 24 or 48 hours notice can save you a lot of headache down the road." Without notice, the developer or contractor may claim that you failed to preserve the evidence, leaving them unable to investigate the problem and perhaps easily fix the problem themselves.

Matt also says taking photos of the damage isn't enough and that you need to understand that there are deadlines for notifying your developer of potential claims and filing any lawsuit.

To read more about what you should know about construction defects, see our just-posted article. Go there now »

Best regards,
Matt Humphrey
President