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