THE IMPORTANCE OF EFFECTIVE COMMUNICATION
DURING A CONSTRUCTION DEFECT CLAIM IN THE NEW NORMAL! BY: MR. RITCHIE LIPSON, ESQ. , KASDAN TURNER THOMSON BOOTH LLP
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ffective communication within a homeowners’ association is always important. Once an association brings a construction defect action against the builder, communication and cooperation among the board, community association manager, and the construction defect attorney become essential. With the outbreak of COVID-19, how we communicate and do business in the future will most likely remain permanently changed. A construction defect action by a homeowners’ association usually begins with a Notice of Commencement of Legal Proceedings under the Calderon Act (Civil Code § 6000 et seq.), which concurrently meets the need for a Notice of the Claim pursuant to SB800. However, before the attorney may prepare such notice, the attorney must investigate the defects in the community and discuss the identified defects with the board and the community manager. This conversation is the key to defining the scope of the action desired by the association. Sometimes, associations are concerned only about a few key issues. Other times, the association has a plethora of concerns about the construction of its community and wish to pursue all issues completely. The attorney, board members, and manager should discuss these issues and the scope before the attorney prepares and serves the requisite notice on the builder. After the notice is served, California provides for certain statutory time frames in which the builder can investigate the claimed defects, provide construction documents to the association, perhaps perform repairs, and for the parties to mediate the dispute. During this time period, the builder will generally want to visually inspect and photograph the claimed
defects. Seeing unknown people walking through the community and photographing various areas can be alarming for some residents. Thus, the construction defect attorney will develop an inspection schedule for the community and send out a representative from the attorney’s office to guide and monitor the builder’s investigators. The attorney will share the schedule with the board and manager who can provide feedback on the schedule and share the schedule with any concerned residents. Good communications with the manager, board, and members is essential at this point. With today’s “new normal” it is important to develop a detailed COVID-19 compliant inspection program that all experts, those for both the HOA and the defense, are required to follow. This protocol should be communicated to owners so that they feel safe from increased exposure, while at the same time keeping the claim moving forward. After the inspections, the builder’s attorney may provide some feedback on the inspections to the association’s attorney. They may also reveal how the builder views the case. The association’s attorney CONTINUED ON PAGE 16 ISSUE TWO 2021 • CONNECT MAGAZINE
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