If your homeowners or condo association has uncovered repair problems indicating there may be construction defects in the community, who should pursue remedies? This is an interesting scenario, and the answer can vary depending on the circumstances. But, in some instances, the HOA may wish to make a claim against the developer. 

What is a Construction Defect? 

A construction defect is a problem in the materials or workmanship used to build a structure which risks harm to a property or person. In most cases, a construction defect results in significant financial damages. 

There are three main types of construction defects:

  1. Design Defects — A design professional makes an error or omission, leading to a defect in the property. 
  2. Workmanship Defects — A contractor fails to complete the projects according to the designs or code requirements. 
  3. Material Defects — Inadequate or damaged building materials were used, resulting in property defects. 

What Can HOAs Do About Construction Defects?

If you discover a construction defect in your community, should the HOA pursue remedies or the individual homeowner? That depends. If the association is a condo, townhome, or co-op, and the defect relates to the buildings, the HOA will generally be involved because they control those areas. 

Also, many states authorize associations to pursue litigation on matters that affect the community. And construction defects often qualify when there is a common interest. As a practical matter, it often makes the most sense for the HOA to be involved in construction defect claims. 

Common Issues With Construction Defect Claims

If your HOA is facing a construction defect situation, it’s vital that you pursue it promptly and correctly. Most states have a statute of limitations that begins running once you discover the problem. 

You’ll have to put the developer on notice of a potential claim. At the same time, you have the right to make reasonable repairs to prevent further damage to the property. In most construction defect cases, it will be in your best interests to hire an expert who can inspect the property and preserve evidence to strengthen your case. 

In attempts to avoid construction defect claims, many developers put anti-litigation clauses in their governing documents. These are meant to hinder associations from bringing claims. It’s important to note that a majority of these provisions are unenforceable. 

Contact a Skilled Community Association Law Firm

There’s nothing simple about construction defect cases. If your community association has discovered a defect and is unsure how to proceed, speaking with a seasoned community association attorney can provide the clarity you need. 

At The Clarkson Law Group, we specialize in community association law in South Carolina and Nevada. When there is a problem in your community, we will outline your options and help enforce your legal rights. Contact us today to schedule an initial consultation. 

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