The following are the 10 most frequently asked questions by Condominium Associations that are facing potential claims for construction defects:
1. What is a construction defect?
Construction defects can be classified into three categories: defective building material; faulty workmanship; and improper design.
2. Who is responsible for the construction defect?
The developer, design professional, and contractor may all be responsible. Historically, the law has recognized that the various participants in the construction process are liable only for those defects that fall within their respective areas of expertise. For example, a contractor who builds a structure according to the design supplied by the owner generally is not responsible for the adequacy of the design.
3. What warranties should the Association be aware of?
In addition to express written warranties received from the developer and contractors, the Association should be aware of warranties provided by the Condominium Act. The Condominium Act provides implied warranties in favor of individuals who purchase their units from the developer. The warranties as to the developer, run 3 years from completion of the building, (usually measured by the issuance of the Certificate of Occupancy) or 1 year from transition of control from the developer to non-developer unit owners but in no event more than 5 years from completion of the building. There is also a common law implied warranty under which the Association can make claims for a period up to 4 years from transition.
The warranties as to the developer are as follows:
- As to the roof and structural components of a building or other improvements and as to mechanical, electrical, and plumbing elements serving improvements or a building, except mechanical elements serving only one unit, a warranty for a period beginning with the completion of construction of each building or improvement and continuing for 3 years thereafter or 1 year after owners other than the developer obtain control of the association, whichever occurs last, but in no event more than 5 years.
- As to all other improvements for the use of unit owners, a 3 year warranty commencing with the date of completion of the improvements.
Contractors, subcontractors, and suppliers all grant warranties as to work or materials supplied as follows:
- For a period of 3 years from the date of completion of construction of a building or improvement, a warranty as to the roof and structural components of the building or improvement and mechanical and plumbing elements serving a building or an improvement, except mechanical elements serving only one unit.
- For a period of 1 year after completion of all construction, a warranty as to all other improvements and materials.
4. How do we prove that a construction defect exists?
In most cases, the Association will need to hire the services of an independent expert. Experts are those who have the necessary training, education, and experience to give testimony in court as to the cause of a defect. For example, if your roof leaks, a roof expert who has designed roofs, evaluated other defective roof systems, and knows how roofs should be built would be in a good position to testify. A general or roofing contractor can repair a damaged roof, but he may not be the best person to act as the expert.