FREQUENTLY ASKED QUESTIONS

When an owner discovers construction defects in a portion of the property which the association is obligated to maintain, he/she should report the problem to the manager or, if there is no manager, to an association officer or director. The association is obligated to repair the damage under the governing documents, regardless of whether the developer is ultimately responsible. The board is required to exercise prudent business judgment in deciding whether to attempt to perform repairs immediately or to first seek to recover repair costs from the developer. When an owner discovers construction defects in a portion of the property which the owner is obligated to maintain, he/she must repair the damage under the governing documents. The repair obligation exists regardless of whether the developer is ultimately responsible, or whether a previous owner or real estate agent has violated disclosure laws. If the owner fails to repair, the association may do so and assess the costs against the owner. The owner may be entitled to recover his/her repair costs from the developer, a previous owner, or a real estate agent, and should consult an attorney.

The seller of a unit or lot is required by law to disclose all material defects in the property, including defects located in the common area, and defects located in other units or lots if they affect the unit or lot being sold. The disclosure requirements extend to all defects of which the seller is aware or should be aware, including construction defects. Additional disclosure requirements apply when construction defect litigation has been commenced or is under consideration.

Any real estate agent involved in the sale is also required to disclose any defects of which he/she is aware or should be aware, and is further required to conduct a reasonably competent and diligent visual inspection.

Homeowner associations are not required to provide or disclose construction defect information to prospective purchasers of units or lots.

A homeowner association should consult an attorney as soon as it discovers construction defects. Failing to act quickly could result in the loss of recovery rights. The law contains extensive requirements, deadlines, and procedures for construction defect dispute resolution.