Community associations are often given common elements in transition that incur damage from design and/or construction deficiencies. Associations typically have limited funds. Even those with ample financial resources are usually governed by Boards whose members are keenly aware of the fact that the Association’s funds are trust monies that need to be carefully managed and

On November 19-20, 2015, I will be speaking at Perrin Conferences’ First Annual National Construction Defect Conference at the Ritz-Carlton Hotel and Conference Center in Fort Lauderdale, Florida. I am honored to join an esteemed panel of industry colleagues to discuss Navigating the Minefield of Complex Cases (HOA, Condos, Hotels) on Thursday, November 19 at

Unitowners in condominium associations and homeowners in homeowner associations are often confused about the legal responsibilities of design professionals, general contractors, subcontractors and municipal building officials and building inspectors regarding construction of their homes. This blog is intended to briefly clarify and explain the relationship among these various people and entities.

Architects are licensed professionals who design buildings to meet the needs of the owner. They are required to adhere to all applicable building codes and standards in the industry. To that end the architect creates construction drawings, details, and specifications to direct the subcontractors as to the materials or systems they are to use and how those materials and systems are to be integrated into the overall construction in such a manner as to satisfy the design intent of the architect. Architects have to have an overall understanding of the systems and materials being designed into a building and the requirements of the applicable building codes governing construction. The scope of work of the architect varies from job to job and is typically defined by the contract signed by the architect. For example, the scope of work could be as narrow as being hired by builders to simply produce a set of construction drawings that can be used by the builder to obtain a building permit. After that, the architect has no further involvement. At the other end of the spectrum, the architect is involved in reviewing and approving submittals of materials the builder or subcontractors want to use on the project, reviewing contractor applications for payment of invoices, and even reviewing work done by the general contractor/subcontractors in the field for compliance with the plans, manufacturer’s installation specifications, and details.

The Building Department of the municipality is responsible for protecting life and safety. They review the architectural and other construction drawings for compliance with building codes prior to issuing a building permit. They review things like the height of the building, square footage, intended occupancy, fire ratings, seismic requirements, and other considerations with an eye towards keeping the public safe. Once construction is under way, the building inspectors visit the site to check to see if the building is being built per the codes and approved plans. When construction defects are discovered and damage is found, many homeowners and condominium unit owners want to know why the building inspector and township are not responsible. While they may have some moral responsibility, the law of New Jersey gives them a qualified immunity from liability for negligence in doing building inspections. In the absence of fraud (ie, taking bribes), the building inspectors and the municipalities are immune from civil liability. This immunity was presumably granted by the legislature to prevent every municipality in New Jersey from being bankrupted by construction defect cases.


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Transition is often confusing for condominium associations run by Boards populated with unit owners who are not attorneys and who have no prior experience going through the process. Upon transition of control of the condominium association’s board of directors from the sponsor-developer to the unit owners, a key responsibility of the Board is to engage the services of an engineer or architect to conduct an inspection of the common elements to determine if there are any deficiencies. One of the most important considerations for the Board in transition is spending the Association’s money wisely when it comes to engineering investigations
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How do engineers find this moisture damage without tearing off all of the brick and cast stone? They use moisture probes, which are inserted through the mortar joints in the brick and cast stone and into the sheathing and framing. These probes measure the amount of moisture inside the sheathing and framing.
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Transition is often times a confusing issue for condominium associations run by Boards populated with unitowners who are not attorneys and who have no prior experience going through the process. Upon transition of control of the condo association board of directors from the sponsor-developer to the unitowners, a key responsibility of the Board is to engage the services of an engineer or architect to conduct an inspection of the common elements and building design to determine if there are any deficiencies.
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Last week, a Miami judge ruled that a lawsuit filed on behalf of homeowners in the wake of the Chinese drywall disaster can proceed as a class action. The case, currently involving 152 homes in Miami-Dade County, Florida, marks the first state class action approved in the country. Under the judge’s ruling, homeowners in Miami-Dade County can choose whether or not they want to be a part of the lawsuit.
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U.S. District Court Judge Eldon Fallon in the first “bellwether” trial in the Multidistrict Litigation proceedings for homes containing Chinese drywall ruled that the defective drywall attacks and severely damages copper and silver components of homes where the drywall is installed. The ruling also states that in order to correct the problem, the drywall, wiring, plumbing, air conditioning equipment (including ductwork), and interior finish components such as trim, flooring, cabinetry, and carpeting must be removed and replaced. In homes where Chinese drywall is mixed with non-corrosive U.S.-made drywall, the judge ruled, all drywall from whatever source must be stripped, and all wiring, plumbing, and air conditioning systems throughout the house must be replaced.
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Lloyd Medley, chief judge of Orleans Parish Civil District Court, stated that the policy exclusions that insurers have commonly been using to deny claims for drywall damage don’t apply. Medley told Audubon Insurance Co. that the three items in its policy that the company had used to deny the homeowners insurance claim that New Orleans residents Simon and Rebecca Finger had made did not apply.
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