Introduction
Developers and contractors are professionals whose businesses are challenging under even the most ideal conditions. Residential development and construction are made all the more complex by fierce competition for resources, a shortage of qualified labor, an erratic economy, and incessant market demands.
Developers and contractors dislike construction defect litigation as much as homeowners do, and most will make genuine efforts to resolve problems quickly and efficiently—if you let them.
Whether a defect is severe enough to warrant legal action depends on which side of the contract you signed. For the homeowner, understandably, all defects are serious; but, from a practical standpoint, most probably aren't serious enough to require a lawsuit. Constructive negotiations with the developer, builder, or contractor nearly always lead to resolution. In fact, most construction defects are resolved without legal action—and for good reason. Litigation is extremely costly. Associations and homeowners must compare the cost to repair construction defects against the cost to argue about them.
Although we are attorneys, we're not encouraging readers to rush to the courthouse at the first sign of damage. On the contrary, we encourage you to pursue friendly resolution with your developer or contractor, let them make repairs, and consider all non-legal options seriously before you file suit. However, for the unfortunate minority who find themselves faced with litigation, we intend this book to provide enough guidance to make the process as productive and positive as possible—not only for homeowners and associations, but also for developers, contractors, and others involved in the process.
For common-interest developments, also known as community associations, an already complex process can be aggravated by added layers of governance and operation. Thus, the association's manager and its board become key players in the litigation process. It's a complicated, time-consuming process they generally know little about. For self-managed associations, board members also serve as managers who not only aren't experts on litigation, but also may not have a firm grasp on governing and operating their associations.
In some cases, association boards consist of developer directors (because as owner of the unsold homes, the developer has a vested interest in governing the association) and homeowner directors. These are associations in transition. The balance of governance gradually shifts toward homeowner directors as properties sell, but resolving construction defects during the transition stage presents unique challenges because developers and homeowners are likely to have different interests. Addressing the specifics of the transition process is beyond the scope of this book; however, the process for resolving defect claims described here applies to those in transition and should prove very useful.
Construction defect litigation is complex and time consuming. We believe this book will simplify many of its complexities and provide a compass with which to navigate from discovery to recovery.