This is part 13 of Randy Sawyer’s 16 Part series on UCIOA. You can read previous posts here.
Section 88, subsection (d)
§88(d) – Within 120 days after the association’s receipt of any request for inspection of any phase of the completed common elements or other improvements, the committee shall cause its engineering consultant to inspect the particular completed improvements and render a written evaluation of same to the committee. A copy of the final report, following the committee’s review of the initial evaluation, shall be furnished to the declarant within 30 days after the committee’s receipt of the report. Thereafter, the committee, or its designated representatives, and the declarant shall conduct one or more joint inspections of the common elements and other improvements covered by the declarant’s request and pursue good faith negotiations to resolve any warranty or construction defect claims against the declarant. All fees and related expenses incurred by the committee for engineering and legal consultants shall be paid promptly by the association from available designated funds upon receipt of the committee’s written authorization to make such payments.
The language of subsection (d) of Section 88 should greatly concern anyone who has any involvement in
complex construction matters, since persons with such experience know that 120 days is a wholly insufficient time period for a quality engineer or inspector to complete inspections and the preparation of a written report. This is another example of the time pressure written into this statute. Since latent defects may surface years later, it will likely lead to an already financially burdened Association to have to pay for multiple reports on the same issues.
This provision also requires the committee of independent (supposedly) unit owners to provide the developer with the inspection report within 30 days of receiving the report from the engineer. This 30 day period combined with the 120 days for the inspection and preparation of the report means that the developer can force the issue and receive a final report within 150 days of demanding that a common element be evaluated. This short time period gives the developer the ability to time his demands so that each common element that is completed is evaluated before it is exposed to a rainy season, or a freeze/thaw cycle of winter to spring. In other words, the developer can time its demands that common elements be inspected by making the demand during a stretch of good weather, thereby forcing the inspections to be done during the hot summer months when there is little rain fall to expose leaks in, for example, roofs or windows. This, again, appears to be intentional.
The language “the committee, or its designated representatives, and the declarant shall conduct one or more joint inspections of the common elements and other improvements covered by the declarant’s request and pursue good faith negotiations to resolve any warranty or construction defect claims against the declarant,” is a perfect example of the one-sided nature of this statute. Here, at the conclusion of the common element inspection process controlled by the developer, the Association is obligated by statute to negotiate the claims “in good faith.” Why was this language included here but not in the process outlined in Section 87 where the developer is obligated to make a settlement proposal after receiving a notice of a claim from the Association?
The language “[a]ll fees and related expenses incurred by the committee for engineering and legal consultants shall be paid promptly by the association from available designated . . .” requires the Association to pay all expenses incurred by the independent (supposedly) committee in dealing with the developer’s demand to inspect and negotiate common element claims. Where, however, is that money going to come from? The developer could institute this process very early in the Association’s existence when it has little money. This is another example of the financial pressure that UCIOA gives to the developer to use as a weapon against the Association.