Whether you serve on an association board or just own a condominium, when a problem arises with the buildings you need to have an understanding of how to respond. Most board members serve part time and take on many thankless tasks, but few are experts in either building construction, architecture or legal claims for construction defects.
Defining the Problem.
Understand that maintenance and repair of normal wear and tear aren’t construction defects. They are are your problem and the association must pay to have that kind of work performed on a timely basis. Regular maintenance on an association complex, especially a larger complex with several multi-story buildings, is quite expensive.
You want to be on the look-out for problems that are atypical but prevalent throughout the condominium complex. These become more concerning when routine repairs fails. Things like window leaks that re-occur after sealant repairs; roof or interior water leaks in similar locations in multiple units; or large exterior stucco cracks – especially if they ooze something out of the crack – are warning signs of a possible defect. Whenever a problem reoccurs after repairs are attempted or you can see the materials deteriorating right before your eyes, you need to start investigating the cause.
Avoid trying to investigate on your own or having the handy-man ‘check it out’. Get a licensed contractor familiar with remediation of construction defects to examine the problems. Don’t just let the contractor start tearing things apart and sending you the bill. Often, it is impossible to fully investigate without hiring an engineer or an architect to thoroughly inspect every aspect of the complex. This initial investigation will likely become critically important if widespread construction defects and hidden damage are found.
Why is the Association’s Problem?
Most condominium or shared maintenance communities don’t allow individual owners to perform any repairs on the exterior of the buildings. These “common elements” are usually the sole responsibility of the association to maintain and repair. It follows that the association must pay for those repairs, but it can only do so with the owners’ money. Regular association dues are rarely enough to cover expensive repairs meaning that special assessments against the owners becomes necessary to raise the repair funds. Owners hate that.
In Missouri, which is typical of many states, the association is authorized by statute to file a lawsuit on matters affecting the condominium, and construction defects fall in that department. Often, an association can also bring suit on claims by individual owners, so long as it represents two or more owners on those claims. The power to pursue a legal remedy for repairs to the common areas when they are affected by construction defects is one the board members of the association must take seriously.
Time to Bring a Suit for Construction Defects
Several different deadlines can apply to cut off your rights to bring a suit for payment of the repairs for a condominium complex. Statutes of limitation are usually triggered when the association first learns of a problem with the complex and had the opportunity to investigate it or associate it with construction defects. Many factual issues are at play and even seemingly innocent comments in meeting minutes or minor repairs can later be said to have started the statute of limitations. Once it starts, the suit must be filed within the statutory time period. In some cases that time is 2 years, in others 5 years, but there are also statutes with still different time periods.
Other deadlines can apply uniquely to condominium complexes. In Missouri, a specific statute of limitations applies to claims for breaches of warranty on the construction of the complex, and generally limits a claim to 6 years from the time of the completion of the construction of the common elements. Unfortunately for owners, it doesn’t matter if the damage is slowly accumulating hidden under the siding, rotting from the inside out, and the owners know nothing about it because the clock is ticking the whole time and could expire without you having any idea that something is wrong. Such high stakes require a lot of diligence by the association when a problem does arise.
With so many factors in play and the potential to lose the right to bring a claim even before you know about the defects, it is best to consult a qualified construction attorney to evaluate the limitations that may apply in your situation. Experienced construction attorneys can assist with investigations, identification of engineers and contractors qualified to evaluate complex defects and projects such as a condominium and provide the legal options to recover the repair costs.