Disadvantages of Retaining a Sole Practitioner Attorney
Construction Defect Laws
California Condominum Conversions
Non-Payment of Assessments by Developer
Self-Insurance by Developer
Many homeowner associations and homeowners in
California new home developments are finding that
the common areas of their communities and their individual homes
have construction defects which are not attributable to the
lack of ordinary maintenance. These construction defects include roof leaks,
deck leaks, mold infestations, deteriorating streets, improper
drainage, structural failure, inadequate soil preparation, faulty
electrical wiring, insufficient insulation and sound proofing,
inadequate equipment, cracked slabs,
defective swimming pools, peeling paint,
Chinese Drywall and other
defects too numerous to list. The construction defects can be caused by
poor design, poor construction, poor choice of materials or
defective materials. See:
Defects, Developers Breach of Fiduciary Duty,
Defective Vegetative - Green Roofs, and
Defective Grasscrete - Porous Pavement Systems.
|Nearly all CC&Rs impose upon homeowner
associations the duty to maintain and repair the common areas.
Legally, this duty includes paying for the correction of defective
conditions, including those set forth above. These repairs,
which can be quite expensive, can be paid for in several ways:
First, the association can pay for the cost of repairs
out of its reserves. However, in most cases the reserves
Second, the amount required to pay the cost of repairs
can be obtained by specially assessing the individual homeowners
or borrowing funds.
Third, the association may seek redress from the builder
of the project who in many cases is legally responsible
for the cost of repairs. In those rare situations where a developer has no insurance, we are prepared to
pierce the corporate veil.
Michael T. Chulak & Associates represents homeowner associations and property owners
throughout California on a contingency basis in dealing with builders who are responsible
for defective construction. Generally, we can meet or beat the
contingent fee percentages proposed by our competitors.
|We regularly advance all or some of the costs
of litigation including expert fees. Contact us for additional
|We have prepared a list of Frequently Asked Questions about Construction Defects,
which should answer most questions you have. We have also prepared
a Due Diligence Review Checklist to assist you in
understanding the process and a Construction Defects Glossary. Ask us about when punitive damages may apply.
|Associations and property owners should know their
legal rights and not be misled or intimidated when attempting
to seek redress for construction defects. The attorneys with
Michael T. Chulak & Associates are available to assist you in
this regard. We are homeowner/consumer advocates. There will
be no charge for the initial consultation.
Individual Homeowner Claims
Against Developers – Home Builders
When the board of directors of a homeowners association in California refuses or declines to make a claim against a developer for construction defects, even one individual homeowner may do so. Since every homeowner in a common interest development, such as a condominium association, owns an undivided interest in all of the common areas, they have legal standing to seek damages from a developer who has constructed defective common area components. In addition, every homeowner has standing to make claims for defects in their own homes.
Our firm represents individual homeowners and groups of homeowners (as well as associations) on a contingency basis, in making construction defect claims against developers anywhere in California. For most cases, we will advance some or all out of pocket costs related to such claims. Claims against home builders must be made timely. Failure to miss an important deadline can result in the loss of some or all legal rights to make a claim and obtain compensation for defective construction. Consequently, it is critically important that you contact one of our construction defect attorneys as soon as you identify any serious construction defects in your home and common areas.
Individual Homeowner Claims
Against Homeowner Associations
We are one of a few experienced HOA law firms in California that represents individual homeowners in claims against their association. We also provide and have provided legal services to hundreds of homeowner associations throughout California. Most HOA law firms represent only homeowner associations.
A legal claim against an owner's homeowner association should only be made when it is clear that the board will not remedy a legitimate complaint involving CC&R compliance that is of a serious nature. Examples include failure to maintain common areas leading to water intrusion, mold, major cracks, or earth movement. Our firm generally represents individual homeowners on a contingency basis and usually advances some or all of the out of pocket costs in connection with these claims. Call us to discuss your claim.
Owner Claims Against HOA
The most common claim made by
the owners of condominium units against their homeowner associations
is that their unit is experiencing water intrusion because the
association has failed to maintain the common area. Generally, this
involves leaking roofs, decks, planters, walls, and windows, and
often improper slopes and drainage. When a condominium unit owner
makes a claim against the association, it is generally because the
statue of limitations has run and therefore a claim cannot be made
against the developer of the condominium community.
a condominium unit owner has exhausted his or her patience with the
board and files a lawsuit against the association, (not the board),
the association will almost always contact its insurance company.
Assuming there is coverage, the insurance company will hire a law
firm to represent the association and the law firm will hire any
appropriate experts needed to investigate the situation and provide
advice on how to remedy the problem.
part of the process, the plaintiff's attorney will hire one or more
experts to provide advice and repair cost estimates.
After all experts have completed their investigations, have
developed a scope of repairs, and cost estimates, a mediation
session will be arranged so that the parties can avoid further
litigation and settle the matter short of going to court. In 99% of
these matters, the dispute is settled in mediation.
Settlements usually, but not
always, consist of the following:
||The association agrees to repair the common area in a manner that is acceptable to the expert working for the plaintiff's attorney;
||The association agrees to pay the plaintiff a dollar amount sufficient to make interior repairs and pay for loss of use; and
||The association agrees to pay all of the plaintiff's attorney fees and costs.
||Most importantly, depending upon the insurance coverage, the cost of settling the case will be paid in part or completely by the insurance company.
If you are a member of an association board, don't let this happen to your association. A competent management company combined with good legal advice can save your association thousands of dollars.
After Your Construction Defect Case is Settled
When a construction defect case against a developer is settled or a judgment is obtained, the plaintiff’s involvement is not over. At the minimum, the following must be considered:
- Establishing priorities for repairs;
- Approving written repair specifications and bidding instructions;
- Establishing a budget for repairs;
- Obtaining written bids;
- Interviewing general contractors;
- Completing due diligence on general contractors;
- Interviewing construction managers;
- Completing due diligence on construction managers;
- Negotiating the repair contract price, terms, and warranties;
- Drafting the construction contract;
- Drafting the construction management contract;
- Considering upgrades or improvements;
- Evaluating whether the association should borrow funds;
- Making the required Civil Code Section 1375.1 Disclosure to the members of the association.
The construction defect attorneys with Michael T. Chulak & Associates can assist you with the decision process. One problem is enough.
Loans to Homeowner Associations for
For various reasons, homeowner associations are sometimes short of the funds required to make 100% of all needed repairs after they settle their construction defect claim or obtain a judgment. When this happens, associations often prefer to obtain a loan to cover any shortfall rather than special assess the members. Our firm is unique in being in a position to guarantee the availability of funds should the need arise. The terms of such a loan and guarantee must be in writing. We would be pleased to discuss the details with you at any time.
Mitigation of Damages to People and/or Property
Mitigation of damages is often referred to as the doctrine of avoidable consequences. The doctrine requires that a plaintiff who is injured by a defendant take reasonable steps to minimize his damages. It applies after the defendant causes the harm but at a time when the plaintiff still has an opportunity to avoid at least some of the consequences.
Duty to Mitigate
The mitigation doctrine imposes a duty upon a plaintiff to use ordinary care and reasonable diligence to minimize damages and to avoid increasing the damages.
Application of the Mitigation Rule
The mitigation rule applies to injuries to a person or to property in an action for a breach of contract or tort such as negligence.
Plaintiffs may generally use their own discretion in dealing with their injuries. However, such reasonable discretion does not permit the plaintiff to stand by and watch his losses accumulate so as to seek greater damages from the defendant who caused the injury. Instead, courts impose a reasonableness standard upon the plaintiff. He must expend at least a minimal effort and/or expense to minimize losses if it is reasonable under the circumstances to do so. He is not required, however, to go to extraordinary lengths, spend sums beyond his means, do what is impracticable, give up important and valuable rights, or put himself in any danger in order to minimize damages.
The determination of whether the plaintiff’s attempt at minimizing damages was reasonable requires a court to consider the amount of time between the injury and the plaintiff’s mitigation efforts, the plaintiff’s awareness of the need to minimize losses, the opportunities for the plaintiff to mitigate damages, the cost of mitigating damages, and the plaintiff’s ability to pay.
The fact that a plaintiff has failed to minimize damages after attempting to do so does not prove that he did use reasonable means in his attempts.
Burden of Proof
A defendant has the burden of proving that the plaintiff failed to take reasonable steps to minimize his damages, that the damages could have been avoided, and that the avoidable damages can be measured with reasonable certainty.
Effect of the Mitigation Rule
If a plaintiff fails to reasonably attempt to mitigate his damages, any damages that are awarded to him may be reduced by the amount of damages that he could have avoided.
Recovery of Costs
A plaintiff who takes reasonable measures to minimize his damages may recover the reasonable costs that were expended in doing so, even if his mitigation attempts have failed or increased his losses.
Mitigation by Defendant
Just as plaintiffs are required to mitigate their damages, defendants can be held accountable by a court to reasonably mitigate the damages caused by the defendant.
Whether you are a plaintiff or defendant, we can assist you in formulating a Mitigation Plan designed to protect your legal interest. This part of a case should never be overlooked.
Expert Witnesses and Consultants Needed
In connection with our extensive litigation practice, Michael T. Chulak & Associates regularly utilizes the services of expert witnesses and consultants. If you believe you have the knowledge, experience and overall ability to provide these services, we invite you to complete an application and return it with your current resume. Upon receipt, we will enter the information into our database for use by our litigation attorneys and support staff. Please view our websites to become familiar with our areas of practice.
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|For additional information on
construction defects or other legal services, please contact us.
Attention Construction Defect Attorneys.
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