The attorneys at Garcia | Marsalli, LLP have represented both homeowner associations and thousands of individual homeowners throughout California in construction defect actions against developers and their subcontractors, for all types of construction problems: ranging from window and roof leaks to severe soil settlement (subsidence) and foundation deflection. Construction litigation is the primary focus of our practice.

While some defects may be readily apparent (patent defects), others can be difficult to observe or discover without appropriate training and experience (latent defects). Although this list is far from complete, property owners and property managers should be on the lookout for the following potential issues:

Garcia | Marsalli, LLP works with a variety of highly experienced construction experts to investigate our clients’ concerns, which may include civil and structural engineers, geotechnical engineers, window and door specialists (a “fenestration” expert), reconstruction experts, and other specialists as a case may require. During their investigation, our inspectors document any issues our clients have already discovered, along with other issues which may be more difficult to detect. Our inspectors routinely find defects and building code violations that were completely unknown to our clients, often simply because most homeowners and property managers lack construction experience and are unfamiliar with the Building Code.

There are different alternatives for pursuing construction defect claims against a developer/homebuilder. One approach is to file a lawsuit against the builder in the Superior Court, in the county where the property is located. Alternatively, a pre-litigation “Notice of Claim” can be made to the builder pursuant to California Civil Code section 896, also known as “SB 800.” This route provides the builder a potential opportunity to make repairs before formal litigation. Our office will evaluate whether the builder complied with certain requirements under the law and determine whether a Notice of Claim is necessary and appropriate. If the builder complied with the SB800 prerequisites, receives a Notice of Claim, and still fails to make repairs (or if those repairs are insufficient), we then move forward with filing a formal action. Unfortunately, it has been our experience that many builders are unwilling or unable to fix everything, and only offer relatively cursory repairs. Even when it is necessary to file a lawsuit, community associations, property managers and homeowners should understand that it does not mean the case will automatically proceed to trial. There are various “alternative dispute resolution” methods that are regularly used in cases of this nature, like mediation and arbitration.

Construction defect cases involving multiple properties or units are typically classified as “complex” civil litigation by the court and are subject to special rules governing how they are handled. Typically, a judge assigns a “Special Master,” Discovery Referee or Mediator to work with the parties. These individuals try to help the parties reach a pre-trial settlement of the case, through one or more settlement conferences. We strongly recommend that community association boards and homeowners work with a law firm that has specific and significant experience in this highly complex area of practice. Our clients’ homes are often their single greatest investment, and we are committed to protecting and preserving their rights.

Homeowners, property managers, and association board members should also be aware that California law provides a limited ten-year window of time to file a claim against a developer for any defects in construction. This is known as the “statute of limitations.” Under California law, the deadline is measured from the date that construction is “substantially complete,” which is determined by the earliest occurrence of one of a few different events: such as the builder recording a “Notice of Completion” or the date the homeowners moved into the home. For example, if construction was completed on December 1, 2013, the deadline to file a claim against the builder expires on December 1, 2023.

It is also important to know that there are other much shorter deadlines which apply to potential claims. Under Civil Code section 896 discussed above, there are very short deadlines for certain types of defects, some as short as one or two years. If you suspect you might have construction defects in your property, we would encourage you to contact an experienced construction defect attorney as soon as possible. Once deadlines have expired, in particular the ten-year statute of limitations, there is generally no recourse against the builder.

If you have any questions about defects or problems in your home or community, the rules and laws that apply to the construction or sale of your property, your rights as a homeowner, or the rights and duties of a community association, we invite you to contact our office.