Dear PoPville – Do You Think We Have Any Legal Recourse?

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Dear PoPville,

I own and live in a rather new and large condo building in NW DC. Although there have been minor problems from the start, we have found, roughly 3 or 4 years after construction, that there are major and multiple faults with the building. Strong storms in 2011 have led to water leaks and damage. We have discovered that windows were not storm-proofed properly and an entire wall of the building was constructed improperly and not waterproofed. Estimates to fix the structural source of these problems could be in the millions. Unfortunately, the Master Insurance Policy, as well as our own Homeowners Insurance, does not cover fixing these problems, just the acute damage. The builder also seems to be immune as their liability expired 2 years after construction. Is there any legal recourse for us?

43 Comment

  • T

    Your condo association should consult with a lawyer. There may be implied warranties (e.g., workmanlike quality, etc) that could give you recourse against the builder or others.

    • +1. Take anything you read here with a grain of salt. You are talking about real money. Hire a real lawyer for some real advice.

    • Yes we have consulted our HOA lawyer. They have suggested our recourse is limited or zero, while many do not believe this.

      • T

        Just like you might get a second opinion from a doctor, I suggest consulting another lawyer for a second opinion if you think your lawyer has not investigated this fully and/or is not taking this seriously.

      • I used to work for a construction litigation firm as a paralegal another lifetime ago and we use to handle cases like this all the time.
        I’d work with your HOA attorney but more importantly your insurer. If problems were noticed and addressed within the warranty period you should be more than covered – but as a non-lawyer I can’t say for certain.
        The only recommendation I’d have is to work with your insurer and attorney. It seems you may want to work with a different attorney since your current counsel doesn’t see a case. I’d recommend you look for a good litigator specializing in construction defect – your current attorney and insurer should be able to provide the initial recommendations. Another option would be to look at current cases and see who was successful and reach out to that attorney(ies).
        Good Luck!

    • Look up everyone who’s inspected the property and if anyone certified it, you’d have a claim. These types of inspections are done during the purchase period and done as part of getting qualified for homeowner’s insurance. Looking for people to blame if you didn’t hire an inspector of your own is a bit of a stretch though… It would be better to cite/claim the structural damage as water damage from gutter/storm drain overflow, its a completely different classification than flooding which is generally required to be covered by your insurance company…

  • This is what HOA dues are for. You really should be saving for capital replacement AND unexpected structural issues.

    Most likely the builder will claim that the hurricane and earthquake caused the issues and he/she is not responsible.

    • That’s when you sue the living crap out of the developer.

    • We realize that’s what condo due are for, however, the building, though large, has only been fully occupied for a year or so and reserves are not a significant as an older building

      • Sounds like a time for a special assessment. Welcome to home ownership. If you don’t want the risks of living in a large condo, then rent.

        Why does everyone think the answer is to sue everyone. Can you prove that the builder did it and not mother nature?

        • Bingo. The building passed (I assume) all inspections, and the builder’s warrantee/liability expired before these problems, so it sounds liek the condo association has to take care of it (via dues increase, special assessment, etc.).

          This is one of the many reason I chose to buy an older row home that required me to rehab it rather than a home that had already been remodeled. At least I know it’s dont right.

        • Because they were fleeced. And to get justice when you are fleeced, you have to turn to the courts. Sometimes you can turn to the media and shame someone who defrauded you into settling, but most of the time you have to go to the courts. This is why we have courts. This is why we pay tax dollars to have a functioning judicial system. And having courts available to remedy injustice encourages most businesses to stay on the straight and narrow, so really we all benefit when people use the system that’s there for them to use. Is it really that difficult to understand?

  • Great point by dat, above, about the implied warranties against the contractor. Also, if you hired an inspector to review your contractor’s work for these kinds of flaws, and the inspector didn’t find the problems, you might have recourse against the inspector…?

    • pablo .raw

      I have seen many home inspections and I don’t think an inspector can detect that kind of problem.

    • An inspector won’t find structural flaws of that nature unless they are glaring. A DC inspector might have found them during inspections during construction, but also unlikely. This is detail work, like properly sealing the exterior of the windows, which could easily be done in a cheap but outwardly proper way.

  • Did there not used to be an actual attorney who answered questions like this on PoP? It was a regular posting.

  • Ok,

    I am going to be devils advocate here.

    You mentioned there were a few minor problems from the get go. I don’t know anyone who has ever bought a brand new condo or house and not had some minor issues to deal with. Unfortunately, its just the way it is. Kinda like your brand new car getting worse mpg’s during the first ~2000 mile break in period.

    Damage in the millions? How big is your building? You can build a new 10 unit condo building for a million bucks (new construction condos average 100K per (depending on size)

    What seems to be your issue is water leakage from the hurricane. Well, it “was” a hurricane. I, along with half a dozen other people I know who live in SFH’s, Apt’s and Condo’s all had slight issues. Some of my flashing got blown off allowing a leak. I crawled up on the roof the next day and nailed some new flashing down, problem solved.

    It sounds like you’ve hired a contractor to diagnose your problems and he is pointing out supposed deficiences, all in the hopes that you hire them to spend a fortune fixing them. At the very least I would hire atleast two different people to diganose your problems, especially if they are that severe.

    The place isn’t very old, and it ostensibly passed all its permit inspections during the building process, although I am not saying DC inspectors aren’t infalliable.

    Listen, I am not saying your place wasn’t built poorly. It might have been. All I am saying is that saying it is the builders fault because the place didn’t survive a HURRICANE unscathed where we got 8″ of rain in 2 days.

    Either way you are going to have a heck of a time getting money out of a contractor when you are saying the bulk of the issues stem from a hurricane, you know…all the “act of god” and all.

  • If you (and by extension, your HOA) can afford it, I would just hire a really good lawyer and sue the living crap out of everybody in sight: developer, investors, management company, construction contractors (all of them), even people who work in the building. Let the courts sort it out. And if it gets enough press, one of the above will end up settling out of court for more than enough money to get the wall fixed.

    Disclaimer: I am not a lawyer.

    • That’s a terrible idea. If you start suing everyone in sight, you and your crackerjack lawyer could be up for sanctions for bad faith filings. And suing the building employees? Do you actually think that suing a maintenance guy who makes $25K is the right thing to do? That’s just poor form.

      And you misunderstand what leverage lawsuits get you. The fact is that developers, like auto dealers and contractors, get sued all the time. The threat doesn’t scare them, and their lawyers know the field better than most.

      To the OP: Definitely have a face-to-face meeting with a new lawyer for a second opinion, but don’t get your hopes up. From what I remember, DC law imposes a mandatory 2-year warranty on structural defects. Since there’s a statute dealing with the subject, I’m not sure any implied warranties would apply.

      • Actually, it just needs to be an enormous lawsuit. Huge and crushing, to send everyone involved a clear message, to make it perfectly clear that they messed up and are going to pay for it, under the United States Judicial System. That’s how it works in this country, my friend.

        • Oh really? Last I checked, our legal system is based on statues, laws, and contracts–exactly what has been cited in this case–not your outsized sense of outrage.

          Don’t get me wrong, I feel bad for the OP, and they should seek legal counsel, but that doesn’t guarantee the legal outcome you are suggesting.

          • An “outsized sense of outrage” is exactly what a plaintiff needs to succeed in a case such as this one. There’s a big difference between what we in the industry call “soft law,” and “hard law.” This one is hard. Hard as a rock.

    • Any “really good lawyer” would never do what you’re suggesting. That’s why they’re really good, and not ambulance chasers.

      • Yeah, that’s the sort of lawyer who is going to mislead you and tell you that you can’t sue anybody. The legal system in this nation of ours can be used to your advantage if you have a smart enough lawyer.

  • I feel for you. My condo building just went through a couple of years of repairs similar in magnitude to yours. Each unit was assessed tens of thousands of dollars to fund the construction…it was a nightmare. I believe you should look into suing your developer. Worked for us, although we never recouped even a fraction of the funds needed to restore the building’s structure. He claimed bankruptcy before we could even file suit.

    • Additionally, you should hire a structural engineer to assess the damage/deficiencies in your building.

      It’s not unusual for developers to fail to get permits/pay off inspections/etc. It happens all the time in this city, any my building was a victim of it. Hurricane or not, your building should be built soundly, and you need an engineer to tell you how well/poorly the construction really is.

  • Just because your master insurance provider says (how convenient) it does not cover these problems, does not mean they are not legally required to do so under the language of the policy. As others have stated, I would seek out a second opinion. If possible, you’d want the attorneys to work on a contingency basis or else you run the risk of going further under water.

  • I was an arch student and have several friends who work in this type of litigation (sadly not in DC)

    While the contractor may have a basic 2 year “warrantee” there are longer statutes of limitations on certain defects. The first thing i would do is get a copy of all building plans and the construction specification book and have them independently reviewed. 2 things can then happen: either they could be found not to be sound (ie not following current codes or industry accepted best practices) in which case there could be some liability on the part of the architect.

    The builder’s liability may have ended after 2 years for materials and workmanship, however the liability lasts longer if they didn’t actually follow the plans/written specs. For this you need a building inspector to compare the as built conditions of the problem areas to what was specified in the plans & specs.

  • I wonder if you live in the Mt Vernon Triangle area. My Husband and I lived close by while some of the buildings were going up. He’s an architect and commented almost daily how poorly the work was being done. We vowed never to buy a condo (at least not new-build) since the work throughout DC tends to be shoddy at best (instead we bought an old house to renovate where we knoew what the costs would be). We rented a place in a condo building down there and the walls were not done properly there, either. The carpeting on (only) the outer walls got super filthy dirty, but no where else in the place. There were numerous other issues. I know that building has had to fork over a lot of money to fix these issues in the meantime. A friend rented a condo in another of those newly constructed buildings and a large portion of the buiolding had water damage due to pipe burst (I think). I really sympathize with your situation, because the work of these new buildings tends to be horrible. Unfortunately by the time everyone realizes how badly they were constructed the warranty is up and the builder has moved on to a new horribly built place.

  • Please know how frustrated I would be if I were in said situation. I think it sounds like a good idea to get a couple of other opinions from lawyers but knowing that it’s possible that you have no or limited recourse. There is no excuse for shoddy workmanship and people who buy into these homes don’t deserve this, for sure. But, poor workmanship (intentional or not) is out there. To respond to a few points, my understanding about housing inspectors (not talking about DC permit inspectors) is that they do not inspect for structural issues, other than what they can see with their plain eyes. I know, it seems absurd and I often wonder what their job is because isn’t that the point of a housing inspection. Anyway, they are sure to miss foundation, structural issues, things behind walls, unfortunately, and anything that they would have to move out of the way to inspect more closely (so they aren’t held liable for damaging property within a place). If you’ve had an inspector who does more or goes beyond what I’ve outlined here, consider yourself lucky; it is not the norm. Insurance companies will try to go to the end of the earth to not payout claims. I am also understanding that many homeowners insurance do not include hurricane (or other acts of mother nature, e.g., flooding) unless you specifically purchase additional insurance. I’m guessing many people in the DC area don’t have provisions for hurricane or earthquake insurance because it’s not an area prone to either disaster. So, I’m not surprised that the insurance companies are saying they are not responsible for that type of damage claims. While the OP may be right that the condos are of shoddy workmanship, having their liability expire AND with the fact that the DC area did experience atypical weather patterns, it might be that much more difficult to tie a link to the original developers/contractors. And, finally, if you live in a condo association where you pay dues, sadly it sounds as if they monthly dues/the reserve fund will likely need to cover the cost of the repair/work to be done. If there’s not much in the reserves, it is possible that the association may determine it’s necessary to do a special assessment, as a few commenters have already mentioned. Although tempting, it doesn’t seem like a good idea to sue everybody in sight; that will just add to the cost of this mess and likely get you nowhere.

  • Ugh. This is why buying in a new condo building requires due diligence on the part of the BUYER. The developer is not your friend. They are not going to hold the hand of the new association. It is the responsibility of EVERY buyer, and especially the association board, to read the condo documents thoroughly. Then, hire a real estate attorney who can walk the board through what they need to do to get the condo up and running. The developer should have filed a bond with the city. The bond is money the developer puts on the table to guarantee the workmanship of the building. If the developer does not deliver the promised product, then they lose the bond. BUT, there are very specific time frames within which you can go back to the developer with issues and seek the bond as damages — the magic number in DC is two years, so you all are too late. Every new condo building association should hire a structural engineer when the building is 12-18 months old (to give the building time to “settle”). The structural engineer will basically do a much more detailed home inspection of the building and provide the association with a written report of the findings. Then the association sends that report to the developer indicating what the developer must fix. But if the two years passes without incident, then the developer gets their money back and the condo association has said through its silence that all is well with the building. I am not a lawyer, but I do not think you have any recourse; only a lawyer who specializes in DC condo law can advise. How do I know all of this? From A LOT of personal experience.

  • All condos have issues and we have an excellent Association attorney who helped us a lot. Lots of condos found leaks after the hurricane. The defect only had to exist in the first 2 years, you actually have up to 5 years to file suit and any point up to that you can also make a claim with the developer (provided you didn’t already do your warranty study and waive further rights). Getting professionals to assess the problem will tell you whether or not it is a defect. You need to get a second opinion if your attorney said you have no recourse, because I have been told that there is a warranty on common elements as per DC law. Talk to an attorney who specializes in this kind of stuff. I recently got references for a similar problem: Jeff van Grack at Lerch Early, David Mercer at Mercer Trigiani, and Ray Via at Whiteford Taylor.

    • This sounds promising.

      A good friend of mine who lives in L.A. has been struggling with a similar issue in her (fairly new) condo building for the last 10 years or so.

      Apparently it wasn’t built properly and is subject to “water intrusions.” It doesn’t rain often in L.A., but when it did, water was coming through the walls and causing major damage to several units.

      Her take on this situation was: “[I]t sounds to me like it took too long to discover the problems — though two years is a really short liability for the builder, I must say.”

      But if the timeframe for suing is five years — even if the liability period is only two years — it sounds like the OP and his/her building still have a chance.

  • Aren’t new condos supposed to have 10% of the total building cost added to the reserves as seed money?

  • which developer? this needs to be known

  • This post sounds exaggerated. Leaky widows are not uncommon in a new buliding, and the builder often resolves that probkem w/o charge. But the allegation that “an entire wall of the building was constructed improperly and not waterproofed” seems to be hyperbole. If that were the case, the building simply would not have passed inspection. My condo building went through similar start up issues whe in came online and the board worked through them with the builder. The OP sounds like one of the hysterical people in our building who simply doesn’t understand the building systems and how the process works. Telling him/her to consult a lawyer is just bad advice. If he/she is patient, these issues will ultimately be resolved.

  • Most want shiny and new. New is crap. The 100-year old building is the way to go. So what if you have to reno. the kitchen and bath(s) – the building isn’t going to fall apart in 10-15 years. It was built to last, not built to get past the 2 year warranty period.

  • Allison

    You would need to look up the D.C. statute of limitations for latent defects. The builder only “seems to be immune.”

  • Good luck! In DC, it’s buyer beware. No matter how strong of a warranty you have, it doesn’t really seem like DC courts are interested in enforcing contracts. Lawsuits are very expensive, and if you want to recoup your costs, you gotta see whether they have any money anyway. A lot of these builders use one-time LLCs to handle a project and stash their money away in creative ways so that you can’t get to it even if you do win.

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