Oops! The Developer Did It Again! Can A Developer’s Shoddy Work Get An Association In Trouble?

Written by: on Monday, March, 10th, 2014

Imagine renting the HOA club house for a family reunion.  As the reunion is winding down, the attendees decide to have a photograph taken of the family.  After all, who knows when all these relatives will be in the same place again?  As the family members gather on the upper deck of the clubhouse and the children cross their legs and get comfortable up front, the deck collapses and all the family members go falling and sliding to the concrete surface below.  Well, this is exactly what happened at the Wolf Lake Homeowners Association.

What happened in this case?  As one might expect, the deck was not constructed properly—the exterior rimboard was attached only by nails when it should have been notched into the supporting posts and held by lag bolts.  At first glance, this appears to be a construction defect issue to be taken up with the developer/builder, but in this case the pending lawsuit also names the Association.  On what grounds is the Association brought in?  On the grounds that it was negligent and failed to conduct a routine inspection that plaintiffs claim would have immediately spotted the problem.

Although this legal action is in its early stages of litigation, what might this mean for associations?  Do associations have a legal obligation to have all common areas inspected at the time of turnover?  Is this something that needs to be part of the transition process from developer to owner control?  What do you think the judge should do in this particular case?

Elina B. Gilbert