Resolving construction defect claims is a legal process; but, this isn't a legal book or a book just for lawyers. It's a national construction defect guide written for managers, board members, homeowners, and others in (and working for) community associations who need to understand the construction defect litigation process. Construction defect litigation is complex and time consuming. If you're embarking on this process, this book will simplify many of its complexities and save you time and money.
Contents
PART I: Fundamentals
Introduction
Chapter 1: Overview
Chapter 2: Communicating with the Attorney and Members
Chapter 3: Attorney-Client Privilege
PART II: The Investigation
Chapter 4: Checking the Statutes of Limitations
Chapter 5: Hiring the Construction Defect Attorney
Chapter 6: Assembling the Expert Team
Chapter 7: How Experts Identify Defects
Chapter 8: Invasive Testing
PART III: Before Filing a Lawsuit
Chapter 9: Builder's Right-to-Repair Laws
Chapter 10: A Builder's Right-to-Repair: Step-by-Step
Chapter 11: Other Steps before Litigation
PART IV: The Lawsuit
Chapter 12: Who Files Suit-Association or Owners?
Chapter 13: Legal Theories of Recovery
Chapter 14: Construction Defect Litigation Step-by-Step
PART V: Alternative Dispute Resolution
Chapter 15: Mediation
Chapter 16: Arbitration, Judicial Reference, & Private Judges
PART VI: Finances
Chapter 17: The Finances of Litigation
Chapter 18: Recoverable Damages
PART VII: The Morning After
Chapter 19: Reconstruction
PART VIII: Special Considerations
Chapter 20: High-Rise Building Claims
PART IX: Appendices
1. State Standing-to-Sue Statutes
2. Construction Defect Statutes of Limitations for the 50 States and the District of Columbia
3. Commercial General Liability Insurance Triggers of Coverage
4. Reconstruction Contract Term Definitions
5. Investigating and Remediating Mold
Praise for Construction Defect Litigation
"This is not just an excellent and informative publication, it's the first book that adequately explains the legal and procedural aspects of construction defects—a must read for any party in a construction defect case."—Benjamin Dutton, RS
"This book is great. The author's have done an excellent job of bringing this complex subject to the industry in a clear, concise, and comprehensive format."—Scott B. Carpenter, Esq.
"A must read for every homeowner association board considering construction deficiencies."—Nico March, CFM
"This book will help developers and their attorneys refine their strategies for avoiding litigation in connection with construction defects."—G. Douglass White, P.E.
"As a manager that has just started working with developers, this book had a lot to offer as far as correcting the defects and tracking issues."—Lauren Lee, CMCA, AMS
"As a board president of a high rise luxury condominium in Hawaii that recently concluded a construction defect case, I wish I'd had this book. Although we were successful, it would have been so much easier."—Patty Kawakami
"The 'Bible' for community managers needing guidance in construction defect litigation."—Luis A. Cardenas, Judge (Ret.)
Excerpt
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.
About the Authors
Ross W. Feinberg, Esq., is a member of the California, Nevada and Colorado bars. He is the senior partner of the law firm of Feinberg, Grant, Mayfield, Kaneda & Litt, LLP and has received an AV rating from Martindale-Hubbell on behalf of himself and the entire firm indicating very high to preeminent legal ability and very high ethical standards. Mr. Feinberg has the privilege of serving as a member of the national board of trustees and national faculty for Community Associations Institute (CAI) and serves as the Institute's 2006 national president.
He serves as an author and faculty member for the California Association of Community Managers (CACM), co-chair of numerous national seminars on behalf of Mealeys Lexis-Nexis and member of the speakers and topics committee for the annual West Coast Casualty Conference on Construction Defects.
Additionally, Mr. Feinberg has the distinguished honor of being a member of the College of Community Association Lawyers of CAI. He has received numerous industry related awards both from the community association field and the construction defect bar including being the only plaintiff attorney to be awarded the prestigious Jerrold S. Oliver Award of Excellence at the 2003 West Coast Casualty Conference.
Mr. Feinberg received his preparatory education at the University of Southern California where he graduated with a Bachelors of Science degree in Business Administration cum laude in 1981. He received his law degree from the University of San Diego School of Law in 1984. He is a frequent speaker at local, national, and international seminars relative to construction defect litigation, community association law, and consumer class actions, and he is the author of books and articles relative to laws affecting community associations and construction defects.
Most recently, he had the honor of serving as a panelist for the Judicial Symposium on Construction Defect Litigation on behalf of the AEI-Brookings Institute Joint Center for Regulatory Studies in Washington D.C.
Ronald L. Perl, Esq., is a partner of Hill Wallack, Attorneys at Law. He is partner-in-charge of the firm's Community Association Law Practice Group and is a member of the Government Affairs Practice Group. He concentrates his practice in the areas of community association law, transactional real estate, eminent domain, and tax appeals. He is also a mediator for construction, real estate, and community association disputes.
Mr. Perl is nationally recognized for his work in the field of community association law and is a member and former governor of the prestigious national College of Community Association Lawyers. In 2005, he was named a Super Lawyer by Law & Politics and New Jersey Monthly. He is an Adjunct Professor at Seton Hall Law School in Newark, and has served on the faculties of the Community Association Law Seminar and CAI's Professional Management Development Program (PMDP). As a PMDP instructor, Mr. Perl taught community association law to professional managers who were candidates for the Professional Community Association Manager (PCAM) designation. He is a frequent lecturer on all aspects of community law.
Mr. Perl is national president elect of Community Associations Institute and will serve as its president in 2007. He is past president of the New Jersey Chapter and past president of its political action committee.
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