Discussing Construction or Design Defects in HOA or Condo Meeting Minutes—Just Don’t Do it.

In almost every construction defect case, defense counsel will explore whether or not the Statute of Limitations for suit has passed. The operative statutory provision is § 95.11(3)(c), Fla. Stat. The defense will invariably argue that the plaintiff knew or reasonably should have known about the existence of a cause of action more than four years prior to the commencement of litigation. The focus of inquiry regarding at what point a plaintiff knows or should have known about the existence of a cause of action should depend on all the facts and circumstances, not just the existence of a few isolated leaks recorded in the Board’s Minutes by the condominium’s management company. However, one way for a court or arbitrator to clear a crowded calendar is to accept, at face value, Minutes describing isolated leaks as having triggered the running of the Statute of Limitations.

Typically, all the management company representative, who prepares the Minutes, is trying to do is “be transparent.” No management company wants his or her Association Board to be accused of being less than transparent about what’s really going on. That is a misplaced concern when compared to the risks of triggering the running of the Statute of Limitations. Board Minutes containing entries of a few isolated leaks are precisely what defense counsel will use to establish that more than four years have passed between the date of those Minutes and the date of commencement of litigation. When plaintiff’s counsel argues that there are factual disputes on every significant issue bearing on the accrual of the Statute of Limitations, all the defense does is publish to the Court or Arbitrator, the Association’s own Minutes. Those Board Minutes are clear, concise, and are almost always thoughtlessly approved, without any consideration of the fact that the Association may have just shot itself in both feet and possibly lost the right to bring a construction design or defect claim.

The management company representative, who drafts the Minutes, may actually know nothing about the number of leaks, their location, cause, or cure. A lack of real knowledge may likely be considered just background noise by a busy Arbitrator or Judge. The Board’s nicely typed Minutes, noting the issue was summarily “discussed and approved by the Board, is unfortunately more impressive than the actual facts. Why is that? Regrettably what actually happened is far more complicated than the simple and clear record set forth in the Minutes. A thorough deposition of the management representative’s actual lack of real knowledge of leaks may have less persuasive value than a poorly drafted set of condo meeting Minutes. The fact that the actual number of leaks, their location, cause, or cure are all unknown may well get lost in the vast hordes of documents in a multi party suit. Such Minutes become powerful defense evidence of plaintiff’s “knowledge” about the existence of a cause of action. Even more devastating for the Plaintiff occurs when the Minutes, refer to the Board’s discussion with engineers and attorneys. The well-intended plaintiff’s attorney and the engineer who does only plaintiffs work visit the project. While both, may have only been looking for work, the fact that they are discussed in the Minutes is portrayed as knowledge of the existence of a cause of action. The engineer and potential counsel may actually know nothing of substance. A five-minute walk around by the “expert” who naturally exaggerates the potential problem, but offers only to do expensive destructive testing, should never be discussed in HOA/ Condo meeting Minutes.

Let us remind ourselves, what drives lengthy Minutes is a fear about a “lack of transparency.”  Owners sometimes think that Board members are snobby and overly secretive. When new Board members join, their first instinct may be to include as much information in the Minutes as possible, so that there is complete “transparency”. Owners don’t have to know exactly what transpired at the Board meeting. They could have attended or simply asked questions. Super detailed Minutes sound like a noble goal.  Just don’t do it. Such excessive discussion in the Board’s meeting Minutes is very risky, and can unwittingly expose the Association to the loss of a cause of action.

To provide an example, let’s say someone notes in the Minutes: “There are areas on the roof door entrance threshold that permit blowing rain to enter in. This could present a water intrusion problem. Let’s get a lawyer and an engineer to look into it.” When the Board is confronted with a huge proposed contract for destructive investigation and a 40% Plaintiff’s contingent fee, the proposals are rejected because the problem has been largely resolved. Nevertheless, a defense may have been unwittingly set up. A defensive summary judgment requires only that the poorly drafted Minutes note an expert engineer’s concerns along with a tendered contingent attorney’s fee agreement.

What should be done? Leaks should become an action item for the Property Manager to address, but details do not need to be in the Minutes.  If someone were to do an actual destructive investigation years later, the old, forgotten Minutes will be used to prove that there was a serious defect that the Board neglected to address on a timely basis. The Minutes should simply be a summary of the actions taken by the Board at the meeting, nothing more or less. If, during the first few years after construction, the project experienced some isolated leaks and water intrusion issues; why note this issue in the Minutes?

If those early isolated leaks were identified and repaired, but later new and more serious water intrusion appears, the Statute of Limitations may have already been triggered by referring to the isolated leaks. If the Association thereafter hires a real engineer to prepare a comprehensive report detailing a host of latent construction defects, none of which had nothing to do with the earlier leaks; rest assured it will be argued that the HOA or Association failed to timely sue based on the forgotten, but damning, Board meeting Minutes. When the Statute of Limitations begins to run should not be at the first sign of a leak, however, minor or isolated and no matter the cause.

Some Courts and arbitrators believe, erroneously I maintain, that the Statute of Limitations begins to run at the first sign of a leak. The Statute of Limitations should begin to run when the Association became aware that it had a cause of action. The determination of when the Association knew or should have known they had a cause of action should be a factual question that should be properly resolved by an Arbitrator or jury. For that reason alone, Board meeting Minutes should be kept short and sweet. Board Minutes should never address isolated leaks which were repaired. Why? Tubs and shower pans leak, windows may be left open, window panes do break etc. Defense counsel will argue that each of these referenced leaks was part of a systemic defect in the roofing and stucco system. The fact that the Association’s engineer never identified them until years later, cannot make those thoughtlessly prepared Board Minutes go away.

Since many of the persons who read this post were or are actively involved in similar matters, please share your thoughts with me. Justice is what we should be after, not intentionally doing injustice to the owners who have not nothing to cause their loss of their biggest life savings.

Condominium Construction and the Second “Final” Closeout

Chris Weiss Small PicIdeally, owners, contractors and developers should possess knowledge of Statutes of Limitations, statutes of repose applicable to construction defects. They should understand what latent and patent defects are well prior to the bid phase or commencement of contract negotiations.  In any event, knowledge of latent and patent defects should be in the party’s thoughts, prior to participating in inspections and settlement negotiations with condominium associations, unit owners, and others.  Equally as important, given the complexity of condominium construction litigation, contractors should appreciate the differences between traditional, owner controlled, and contractor controlled insurance programs.  In addition, contractors should consider the benefits of maintaining a post construction management plan to receive, evaluate, and resolve defect and warranty claims.

Express Warranties are typically stated in writing pursuant to contractual documents.  Such warranties are typically provided by general contractors and their subcontractors, suppliers, and vendors for one year from the date of substantial or final completion of the project.  Longer express warranties may be provided for specific building components pursuant to project specifications or other contractual requirements. Of course in many states, including Florida, there are statutory warranties that flow to the benefit of condominium associations and owners.

In contrast, Statutory Condominium Warranties for condo projects may require contractors to provide guarantees for durations which are often not determinable until after the project is completed.  Moreover, in certain jurisdictions the determining factors for  the commencement of warranty periods are often beyond the control of the contractors.  Some states link commencement of the warranty to the percentage of individual units sold by the developer and/or the date of turnover of control of the condominium by the Developer to the homeowner controlled condominium association. Pursuant to Florida law for example, Statutory Warranties are provided by the general contractor, subcontractors, and suppliers in favor of the developer, the condominium association and directly to each condominium unit purchaser for specified periods of time. Depending on the building component in question the warranty commences after “completion of all construction” or “completion of a building or improvement” (again, depending on the building component in question). To further complicate matters, the time within which legal action can be taken to enforce these warranties is frequently tolled if there is a delay in turnover of control of the condominium by the Developer.  Accordingly, contractors should understand the relationship between statutory and contract warranties, and the transfer of control of the condominium to the homeowner controlled condominium association.

Contractors and owners should also understand the applicable laws governing the period of time for filing a lawsuit after an event (such as a breach of warranty), frequently referred to as the Statute of Limitations. Although laws vary by State as to what starts the warranty, it typically begins after completion of all construction and/or issuance of a final Certificate of Occupancy.  Laws regarding hidden defects, often referred to as Latent Defects, may extend the limitations period for a claimant to file a lawsuit by delaying the commencement of the limitations period until the defect is discovered or should have been discovered with the exercise of due diligence. The determination of what is ‘discoverable’ is subjective and accordingly, the conservative approach is to consider condominium associations and homeowners unsophisticated with regard to construction and design matters unless demonstrated otherwise.

Contractors should also consider the applicable Statute of Repose, a term used to describe the absolute deadline for a potential claimant to file a lawsuit. The governing repose period varies widely depending on the jurisdiction. In Florida, the legislature changed the absolute length of the Statute of Limitations from 15 years to 10 years.

Post-Construction Management

The good news is that litigation is not inevitable.  In recent years proactive owners, contractors and developers have successfully resolved post-construction defect and warranty claims by condominium unit owners and condominium associations without litigation.  Additionally, implementation of a post-construction management plan incorporating proactive claim avoidance measures and claim resolution strategies may further mitigate the costs and risks associated with condominium construction.  The following suggestions are provided for consideration in this regard.

Temporary Certificate of Occupancy Phase (“TCO”)

1.       Establish a post-construction management team to receive, investigate, and respond to warranty, construction defect, and design defect claims.

2.       Facilitate internal meetings between the post construction management team, project staff, and counsel to review applicable laws relating to warranty and defect claims, to develop claim resolution strategies.

3.       Facilitate external meetings between the post construction management team, project staff, developer, and key subcontractors to discuss and establish protocols for responding to warranty and defect claims.

4.       Address potential problems when discovered, preferably before the potentially responsible parties receive a retainage reduction and/or final payment.  If not timely addressed, the issue will likely be discovered later by the condominium association or owner’s engineers during the turnover inspection. Waiting until then, will ultimately be more costly in terms of repair costs, legal costs, and loss of reputation.

5.       Promote a philosophy of client and customer care.  Establish relationships with property management personnel and unit owners.  Consider the permanence of first-impressions and the possibility the jobsite is open to visitors, i.e. future condominium board members and residents, consultants, engineers, and attorneys.

6.       Copy and store key documents for post-construction management.  Include copies of Certificates of Insurance from each party to the project, store  the prime contract, change orders, subcontracts, as-built drawings, as-built specifications, warranties, maintenance manuals, RFI’s, submittal and RFI logs, and all key submittals.  Maintenance of documents by the Post-Construction Manager should facilitate efficient claim assessment and timely responses to prospective claimants.

Final Certificate of Occupancy Phase (“CO”)

1.       Carefully document and report modifications to building components and systems by others.  Include the information in the post construction management documents for consideration during any future claim assessment.  Monitor the activities of the developer, condominium association, property management, and unit owner own separate contractors and representatives.  Examples of significant Owner modifications include contractors moving walls, modification of plumbing, electrical, and HVAC components. Do note when owners have removed original components to accommodate owner aesthetics.

I had a case recently where the owner removed waterproofing components from the exterior of sliding glass door frames. This did allow the owner’s tile subcontractors to create AN aesthetically pleasing finish against the door frame. However, the Unit Owners unwittingly may make modifications of building envelope components to the detriment of the water barrier. Other problems caused by owner improvements to the detriment of the water barrier. Other problems caused by Owner improvements occur frequently during cable, satellite, audio visual, telephone and other installations. The incompatibility of the low voltage wiring with the plastic pipe or other components in the structure can prove disasterous.

2.       Carefully document and report unusual maintenance practices by the condominium association, property management, homeowners, and housekeepers.  Examples include the use of caustic cleaning solutions, window cleaning crews damaging gaskets and glass, and excessive use of high pressure water in areas not designed for such use.

3.       Continue efforts to establish and cultivate relationships with condominium association board members, property management company personnel, unit owners, and the consulting engineers.  Building engineers and property management personnel are a valuable source of information regarding post construction activities, complaints, and maintenance issues. Develop early warning systems and protocols for addressing potential issues before the condominium association or residents have the opportunity or need to ring alarm bells and make an otherwise minor issue more difficult and costly to resolve.

4.       Facilitate external meetings between the post construction management team, property manager, and condominium association board members to discuss the differences between maintenance issues and construction issues.  Establish protocols for reporting warranty claims.

Warranty and Defect Claim Resolution Phase

1.       Notification:  Activate e-mail and/or phone notification systems for reporting of warranty and defect claims.  A 24-hour answering service may be established to receive and forward calls to the post-construction manager from unit owners, developers, condo associations, and property managers.

2.       Evaluation:  The post-construction manager may take the following action as appropriate/necessary:

  • Interface with counsel and business unit operations management to determine if claim/notice is relevant to pending matters, claims, or negotiations;
  • Consider whether a claim raises latent defect, patent defect, warranty, and/or nuisance issues;
  • Consider whether a claim involves unit owner(s), condominium association, developer, and/or others;
  •  Review/Consider applicable laws with legal counsel regarding claims, defects, warranties, condominium statutes, Statute of Limitations, Statute of Repose, and other relevant factors;
  •  Review drawings/as-built, project specifications, change orders, RFI’s, submittals, warranties, product data sheets, operation & maintenance manuals, and other relevant documentation;
  • Evaluate the financial order of magnitude: Is this an isolated occurrence/location or are multiple locations/occurrences involved?
  • Obtain and evaluate relevant milestones such as the issuance of a Certificate of Occupancy, and homeowner controlled condominium association takeover dates;
  •  Evaluate and consider relationships/history of implicated subcontractors, including status of closeout process, retainage, prior claims/defaults, etc.;
  • Ascertain if the defect claim relates to  a pending or prior insurance or surety bond claim;
  • Consider whether claim relates to design deficiency.  Evaluate and consider your relationship with the Project Architect and other Project Design Professionals;
  • Evaluate and consider contractor relationships with developer, including closeout process, retainage, settlement negotiations, pending claims, and possibility of developer liability;
  • Evaluate and consider general contractor’s exposure, including possible scope gaps and/or deviation from contract documents.  Contact project manager, engineer, superintendent, or others for additional insight;
  •  Evaluate available insurance coverage.  Evaluate whether the project is insured under a traditional owner controlled, or contractor controlled insurance program.  Verify additional insured status;
  • Determine whether implicated subcontractors are bonded or enrolled in a subcontractor default insurance program; and
  • Notify and coordinate efforts with your company’s corporate claims as appropriate.

3.       Action Plan:  Post-construction manager, operations manager and counsel should determine:

  • Action Plan on case-by-case basis;
  • Evaluate the need and strategic advantages to delegate to counsel, etc.;
  • Determine if consultants are required.  If so, consider notice requirements and procure necessary approval from entities such as insurance carrier; and if multi-component claim, attempt to ascertain which issues are most important to claimant and determine plan and structure negotiations accordingly.

4. Execute Action Plan:

  • Post construction manager, operations manager and counsel should execute The Action Plan as appropriate;
  • Prepare/send notice letters and other correspondence to subcontractors, insurance carriers, sureties, developer, architect, attorneys, etc.;
  • Schedule, orchestrate, and attend meetings and inspections with claimants, condominium association, property managers, subcontractors, consultants, developer, design professionals, attorneys, etc.;
  • Document findings – utilize work product/attorney client privilege to the extent possible;
  • Evaluate preliminary findings of any retained consultant and determine if a written report is appropriate. If so, work closely with consultant to obtain report – utilize attorney work product privilege to the extent possible;
  • Coordinate review of the report with counsel and operations manager as appropriate;
  • Orchestrate and cultivate strategic alliances with involved parties (subs, developer, etc.); develop a Joint Defense Agreement and determine and execute ongoing strategy and Action Plan on a case-by-case basis.

A well thought out plan of action for dealing with the inevitable claims and issues that arise after the “completion” of a condominium project represent a sound investment in risk management and mitigation of the potential for expensive litigation.

All of the suggestions provided herein are based on years of experience and successful application. They are intended to complement existing procedures not replace them. If you have questions, comments, or would like to discuss the subject matter in additional detail, please contact Christopher J. Weiss Esq. at (407) 928-6737 or email chris@cweisslaw.com.

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