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Repair and preserve: the balancing act for construction defects

As a Home Owner Association (HOA), HOA board member or community housing management company, following up on construction defects would fall under your purview. Florida law, under Statute 720 and the Rules of Civil Procedure, authorizes an HOA to bring construction defect claims on behalf of its members.

If you are made aware of problem that indicates a construction defect, you must tread carefully to ensure that you balance the need to repair with the need to preserve evidence to enable you to effectively pursue a claim against a developer.

Documenting evidence

Upon the discovery of a construction defect, you begin your difficult balancing act. Repairing the problem in a timely manner is the ultimate goal. Delays can exacerbate the issue and lead to far more damage. Plus, you don't want to subject your homeowner member to an untenable living situation for any period of time.

However, it's important that you not rush in and make immediate repairs. By doing this, without first expertly documenting the construction defect issue, you may weaken your ability to bring an action against your community's developer.

These are some tips to remember when faced with this problem.

  • Don't make immediate repairs without first documenting the issue.
  • Don't attempt to document the problem yourself or rely on an HOA board member who believes they have the know-how to perform documentation.
  • Don't rely solely on photographs or physical "evidence" such as the old defective item.
  • Do act quickly to ensure that you are in compliance with Florida's statute of limitations.
  • Do hire a professional investigator trained in this specific area.
  • Do take action after documentation to mitigate your damages by making necessary repairs and taking any additional steps required to prevent further problems and property damage.
  • Do retain competent legal counsel to guide you through these complex steps, issues and assist you in locating a professional construction defects investigator.

Hiring the right investigator

A potential construction defect must be properly examined and certified by a contractor, engineer, design professional or other applicable professional licensed in Florida. You also need to provide notice to the contractor via a Notice of Defect Claim.

To ensure you are in compliance with this law, you should hire an investigator whose professional training is in the area of the defect under investigation, and who has experience in construction defect claims. He or she can help to preserve and document evidence that is required to prove your claim and substantiate the amount of damages you will be requesting.

The most efficient way of locating and hiring this professional is through the counsel of a knowledgeable attorney who focuses on construction defects in Florida. You lawyer will know the most appropriate investigator for your situation and will provide guidance to help you build your claim against your developer.

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