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Considerations in Maintenance Regarding Construction Litigation

Considerations in Maintenance Regarding Construction Litigation

CONSIDERATIONS IN MAINTENANCE REGARDING CONSTRUCTION LITIGATION

Working as a forensic engineer in the common property developments, HOA’s, providing reports, testimony, design and reserve studies on behalf of Owners, Developers, General Contractors (Builders), Subcontractors, Designers, Insurance Companies and the Ultimate owners (Purchasers), the issue of maintenance has been an ongoing tactical method presented in many cases. The accusation allegation presented keeps duties from the original Developer controlled entity to the Homeowners Association (HOA) controlled entity that included how funding, application, timing and ultimately the impact of concrete maintenance. The work, or lack thereof, can limit the manifestation of damage caused by construction deficiencies. How maintenance responsibility is communicated at turnover of the association from declarant control, the funding provided in reserves, and the repair cycle established by the Developer, all inform the long-term maintenance and performance expectation. This article will describe some processes and understandings that should be considered in newer or rehabilitated properties that fall within statutes for potential litigation.

Issues that arise in this area of defense include: lack of improper, impossible or misunderstood obligations of the property’s maintenance program for both the partially constructed site as well as the final construction. Both the property’s agents, or depending on the common and non-common element interests, the owners should understand the reasons for the maintenance programs, and ensure these obligations are properly exercised and integrated into the systems as a whole. The obligation to maintain property exists in both the covenants and the building codes.

The International Property Maintenance Code’s Scope states “101.2 Scope. The provisions of this code shall apply to all existing residential and nonresidential structures and all existing premises and constitute minimum requirements and standards for premises, structures, equipment and facilities for light, ventilation, space, heating, sanitation, protection from the elements, life safety, safety from fire and other hazards, and for safe and sanitary maintenance; the responsibility of owners, operators and occupants; the occupancy of existing structures and premises, and for administration, enforcement and penalties.”

The International Existing Building Code states, “101.5 Maintenance. Buildings and parts thereof shall be maintained in a safe and sanitary condition. The provisions of the International Property Maintenance Code shall apply to the maintenance of existing buildings and premises; equipment and facilities; light, ventilation, space heating, sanitation, life and fire safety hazards; responsibilities of owners, operators, and occupants; and occupancy of existing premises and buildings. All existing devices or safeguards shall be maintained in all existing buildings. The owner or the owner’s designated agent shall be responsible for the maintenance of the building. To determine compliance with this subsection, the code official shall have the authority to require a building to be re-inspected. Except where specifically permitted by this code, the code shall not provide the basis for removal or abrogation of fire protection and safety systems and devices in existing buildings.”

Picture 1: The joint between dissimilar materials was constructed in a non-maintainable manner. The photo card aids in the preservation and illustrative needs of forensic reporting.

The International Property Maintenance Code has provisions that range from prevention of rodent infestation, to grading and safety components. This code outlays only the minimum standards from the point of view of the Governing Authority. The original Building Code that the property was constructed under, including the Municipal Code, Land Use and Drainage Criteria, may also define needs of maintenance on your property. Other applicable guidelines may apply, such as Structural Warranties, FHA/VA Guidelines or even the documents of a Master Association that can provides the needs for maintenance programs, and in some cases, such as detention and retention, regional stormwater councils may be involved in your site’s requirements.

A typical section of the Covenants, Conditions, and Restrictions (CC&R’s) would define the common and limited common elements that would be maintained or replaced by the HOA. There are numerous items that may be strictly owner-controlled that without maintenance, would unfortunately result in manifestation of damage to limited or common elements such as windows or doors. The individual owner’s obligation typically includes the glazing (the glass), their obligation would not include the window or door product. That means that the owner would not have an obligation to maintain the frame, fins or other features that make up the entire fenestration (window, door or skylight.) Therefore if damage occurs to the product, the owner and the Association have a combined role in the correction to the system. This portion of the covenants defining a common element is not logical as one cannot integrate the product without intrusive work to the building envelope and air barrier systems. The property manager must be able to ascertain not only the needs assessments of the items, but also have limited understanding of the interplay between them if one is left unmaintained, and has impacts on another item.

Picture 2. The lack of a chase under the walkway results in a slip and fall hazard. The ice at the entry can be attributed to attic ventilation, insulation issues, or solar exposure, none of which are maintainable items. In forensic work, seasonal changes aid in providing the necessary understanding of the issues that one may otherwise have to speculate about based on the given conditions.

The ability to communicate the needs of the project to the Board is vital to ensure that an understanding of the interrelationship of the needs are to be made clear in the governing documents that are prepared by the developer during declarant control. The Reserve and Maintenance accounts must be linked so that they properly allocate the resources to ensure the long term viability of the property’s components. Not all maintenance items fall into the reserve accounts, thereby increasing the need to express the knowledge of impacts when a decision to maintain or not maintain is presented to the Board for their consideration, or when the Management Company provides that decision on the Board’s behalf. This communication is more difficult when dealing with multiple property associations such as mixed use or master associations. Simply put, if asphalt sealant is considered maintenance, and the asphalt is considered a reserve item, one cannot be considered without the impact on the other. The joints should be sealed prior to turnover, and inspected yearly. If the Owner/Developer/Builder (ODB) did not seal the joints, how is that passed to the next group in control? The issues of the impacts of both decisions should be understood prior to the failure to maintain. Considering that during construction, an asphalt wearing course is used, and the bounding joint of the concrete exists prior to the final lift, there is more impact in the short term to the curbs and pans than after the final lift is placed. This means that the normal expected life was reduced during the declarant control, and a higher means of maintenance, repair, or even replacement is required at the turn over.

During litigation a number of other issues outside of the normal course of business can become problematic if proper actions are not taken. At least some of the issues that must be addressed include:

  • Allowing observation and documentation
  • Collection of evidence
  • Allowing forensic evaluation
  • Spoliation potential
  • Prevention of manifestation of damages either primary or secondary
  • Providing observation for those defending their work

In order to establish the proper evidentiary protocol, the Association and their Management Company should work with their legal counsel and their forensic consulting engineer or architect to establish a means of documentation during maintenance, repair, life safety situations or replacements. The American Society of Testing and Materials (ASTM) provides some guidelines. Other recognized standards such as NFPA 921 regarding forensic photography may be used in combination with these other guidelines, protocols and standards.

Additional Guidelines: 

ASTM 1188: Standard Practice for the Collection and Preservation of Information and Physical Items by a Technical Investigator

ASTM 860: Examining and Testing Items that Are or may Become Involved in Litigation

ASTM 678: Evaluation of Technical Data

ASTM 620: Reporting Opinions of Scientific or Technical Experts

These guidelines represent methods that can be used in providing documentation of the existing conditions, exposing and documenting underlying conditions, and preserving potential evidence. ASTM 1188 states for example, that under Section 4.3 the work should be documented at each step of the disassembly, or in our words “peeling the onion.” Then the guideline states that the date, time, location and photographer shall be recorded.

Picture 3. The non-primed ends of the trim are not accessible. The use of prefinished materials requires treatments of cuts. When not done, they absorb moisture and decay fungi has the ability to propagate. This is not maintainable, and must be replaced.

This is much easier to handle during the litigation when parties are abreast of the ongoing Association needs, and the Litigation team can provide the protocol of contact, scheduling and sign-in and sign-out sheets during the work. It is much more difficult however, when a property is not involved in litigation and the diligence of this observation protocol is not at the forefront of decision making. The Manager should include daily logs, photographs, work order retention and organization as part of standard routine. This sort of organization of maintenance applications is very helpful when a forensic review of the pre-litigation work becomes necessary.

During litigation there are two documents that are typically used by both plaintiff and the defense. The first is a Transition Study prepared to be used as the baseline for the Reserve Study. If there was not a Transition Study prepared, and the dues were set for competition of pricing and not products, that defense is not a solid one for the ODB. Depending on the ODB, the Transition Study may be simply a catalog of the common and limited common elements with a respective life associated with them, in order to understand the ramifications of the non-compliant construction, or inability to maintain the products. The higher end Transition Study will be prepared by a team of engineers or designers under the guidelines of a Property Condition Assessment, preferably using guidelines in the industry such as ASTM 2018. This study should identify and provide information and capital considerations on the immediate, short term, and long-term common and limited common elements. This needs assessment on the commercial side is referred to as a Capital Expenditure Plan, not a reserve study, however they are the same.The commercial assessment is typically easier to implement to single owner and on-site maintenance personnel. The Residential or Mixed-Use side provides many additional challenges. Those involved in the Community Association Institute (CAI) can truly appreciate the higher communication needs, and thus the opportunity for greater challenges and greater successes to implement these plans.

After identification of components, these studies will assign costs for maintenance, repair or replacements. In simple terms, the idea is to gain the maximum useful life with the minimum input for maintenance or repair. This sustainable practice is set forth with the original Reserve Study provided by the ODB and would have to be implemented at that time under declarant control. There are times this is simply done to define the Reserve Fee and Ownership dues as part of the sales and can be set low for competing market interests. As described within this article, the competing interest to set the fees low to entice sales, may represent a fund that will not provide for long term needs, and in some cases, has been found to set reserves far too low for proper maintenance. The determination of the reserve dues should be made for the entire property prior to construction, not as building’s come on line because the projected maintenance exists prior to the construction. When dues are set per building constructed or unit sold they are typically underfunded. Many ODB’s do not pay reserve dues for vacant properties to increase their own cash flow. When the recession of 2008 hit many associations were left woefully underfunded due to non-completed operations.

Another aspect that needs considered is how the useful life of multiple products on an integrated assembly affects each component of that assembly. An example is a fillet joint seal on a cement board siding and trim interface at a window. Simply put, the joint should be maintained on a 3 to 5 year cycle, and a good joint on a 7 to 10 year cycle. The first consideration would be what sealant should be selected. If it is a paintable joint, the sealant should allow paint, and the paint should be matched to the same life cycle as the building’s paint cycle. If the joint is of proper construction and size to provide a sealant joint outside of the paintable portion, the sealant can be colored and replaced at any cycle without consideration for the paint cycle. HUD Minimum Property Standards 4910.1 defined that flashing should last as long as the product which it protects. This is good advice and should be considered in selections of all components that are integrated. Another example of this in the construction practice is two-ply asphaltic paper used in cementitious systems. Older homes used two layers of 15 pound felt and conventional three coat plastering systems. This older method was very robust in comparison to the current code approved paper and one-coat systems.

HUD Minimum Property Standards for Housing, 1994 Edition, (4910.1), 1994, Chapter 6, Section 607 Thermal and Moisture Protection states, “607-2 FLASHING, General, a. Flashing shall have a service life at least equal to that of the assemblies into which it is built.:”

During standard maintenance, Managers don’t consider documentation of evidence or even think of maintenance work as dealing with the change or loss of potential evidence necessary to preserve in a case. For example, a work order is placed to have the painter provide new sealants around the fenestrations. In reality, considerations should be made that the joints: need to be observed in part or in whole as they were originally constructed, documented with photography that is traceable in a forensic analysis such as identifying the photo number on a drawing of the building elevations. One method of evidence preservation would be to require that the sealant contractor provides as part of their job scope, photographic documentation of the condition of the joint by unit number and location. This would aid the forensic work if there is question as to the original condition. Not only the original surface condition must be cataloged, but the condition of the joint after removal or during removal of the sealant would require documentation. The consideration for quality assurance of the new work such as sealant testing, should be conducted on the new and old work to verify that the new work is in fact compliant to cure the defect of the original work. Without the communication to the HOA’s board and Manager, much of this information can be lost in the repair process.

Consideration of the original construction means must be included in the determination of the means of documentation and repair. For example, a fillet joint on a one-coat or conventional coat stucco system was used in the original construction. This fillet joint must be applied to a properly cured base material and the cleaned and primed dissimilar material. That means that the stucco’s finish coat would be applied after the installation of the sealant joint. To remove the joint, it must be cut away from the dissimilar material; perhaps an aluminum clad window, and the base coat of the stucco material. Then each surface prepared, and the joint sealant replaced. The stucco finish may then need to be cosmetically corrected to ensure that the base coat was cleaned for the new sealant. If the original joint was placed over the finish coat, that finish coat must be removed and the joint reconfigured. This is not maintenance, but a repair necessary for a compliant joint. The costs and work associated with the property maintenance will typically overcome the original savings to the ODB when the choice was made not to install a casing bead with adequate clearance, or joint preparation away from the dissimilar product.

Another example of the damages due to the exposure differences within the constructed complex itself. An adhered brick or faux stone will act as a reservoir system to some degree, with some consideration of the permeability of the mortar used versus the veneer product. In shadow zones, north elevations or under diverter area soffits, the moisture increase will quickly dissolve a two-layer paper moisture management system. That means that the immediate repairs can be identified to those areas of greater potential impact than those with lesser time constraints. This type of analysis provides a what-if scenario to determine potential resultant damage, confine repairs or maintenance to smaller scopes and minimize potential damages to substrates.

In some instances an understanding of a resultant damage, what is referred to as Prong 2™ damages, must be made. The system must provide an ability to perform its intended function. Failure of that ability is a damage referred to as Prong 1™. The results of that inability may lead to further damages from continuous and progressive exposures, known as a Prong 2™ damage. An example of Prong 2™ damage would be a water stain located at the bottom of a balcony’s encapsulated beam. The issue is likely the missing weep systems at the horizontal termination, allowing the buildup of water in that beam’s assembly. To a forensic engineer, that simple crack and stain may indicate a potential life safety issue. Whereas to a property maintenance contractor the decision to use sealant on the bottom of the cladding can be more damaging to the situation.

Photo 4: When the use of onsite detention ponds increases, so does the need for maintenance of the property. In this case, the difficult nature of cleaning a rock lined channel can be understood and the associated costs must be estimated in the reserve study prepared for the transition.

In order to ensure that the construction means and methods, and the potential impact to the maintenance of your property is properly analyzed, it is advisable to work with a knowledgeable forensic design firm that works not only in the jurisprudence fields but also in design and owner representation. In some instances, these firms employ both CAI Reserve Specialists, Professional Engineers, Architects and Construction Professionals to make up their Forensic Teams. This allows them to have a better understanding of the specific needs of your Turnover Study, Reserve Study, Capital Expenditure Plan or Property Condition Assessment. When these studies are conducted with that knowledge, they should provide you better understanding of the needs, the impacts of the original choices made, and the need for further work to identify your property’s risks and the appropriate actions to repair the damages. These teams have a better understanding of the way that the construction or original design decisions will impact the life cycling and potential latent defects or damages due to the ongoing continuous and progressive issues to your property. The study should include an understanding of the potential damages versus exposure and time.

To aid in the understanding of the property we provide a Tier I™ to Tier IV™ system for the observation of the property all the way through the testing of the property. Tier I™ provides the first visual walkthrough of the property that will identify patent that is visible items that can account for potential issues. Each Tier increases the level of examination to be conducted and along with a further understanding of the as-constructed property conditions and manifestation of damages. When Tier IV™ is provided, a full scale intrusive evaluation is made to determine commonality of the construction, the current and potential impacts to non-visible substrates or interstitial spaces and the potential repairs to correct those issues found to every elevation of every building. From the Tier I™ to the Tier IV™ the team understands that the assessment, documentation and case management will require them to ensure that the site is documented in accordance with the potential needs to preserve the evidence, potential evidence, or to collect evidence with proper chain of custody. This work must be coordinated during litigation with the legal counsel employed by the Association to allow the necessary work to occur in the appropriate and typically court assigned time frame; the potential for additional specific needs for specialized forensic investigation such as a coating expert, acoustical expert or geotechnical expert; and proper evidence preservation, evidence documentation and collection. Consideration that there will be in most cases, defendant’s experts providing the same work, not only to defend their claim, but to, in some instances, have the burden of proof in determination of the validity of claims in third party actions.

In those types of cases, the need to separate the damages, or allocate the work and cost to correct the work, must be made in the same manner as the Association’s work. This, when done in conjunction with each litigation team, can provide some cost savings and reduce the burden to the Association and their Management team by allowing co-investigation to occur. Without this type of cooperation, properties undergo multiple observations and testing.

In conclusion, it is difficult to summarize the maintenance needs in a litigation matter as each case can have different issues, damages and parties involved. Proper understanding, documentation, coordination and communication is necessary to ensure that your maintenance program is conducted with the considerations of the potential impacts of litigation that could or is occurring on your properties. Maintenance considerations should include civil (ponds, drainage, streets, curbs), landscape (perimeter grading, inlet or chase cleaning and irrigation), the skin or building envelope (sealants, coatings, paint), roofing (sealants at collars, roofing seams, integration of horizontal to vertical waterproofing, downspout extensions and gutters cleanliness) and any item that has impact on the overall performance of the foundation, structure, finishes or strict reliance on a single part, such as sealant on a Barrier Exterior Insulation Finish System. Above all, knowing when to say, “no, I need more information before we attempt that fix,” is an important aspect to any property that can be, or is under litigation.

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