Illinois Condominium Lawyers

Illinois Condo Attorneys Assisting with Condo Construction Defects

Illinois condominium associations are responsible for the maintenance and repair of the general common elements. While many condominium associations budget for repairs and maintenance of the common elements over an extended period of time, most associations are unprepared to address common element construction defects caused by a developer’s inadequate design, use of defective or substandard materials, insufficient site testing or inferior workmanship. The failure of a board of directors to appropriately investigate and respond to construction defects immediately after the date that the developer turns over control of the association can be financially devastating to a condominium association.

Hirzel Law’s condo attorneys are experienced in dealing with condo construction defects and can better help address how to resolve common element construction defects within Illinois condominiums.

What is a Condominium Construction Defect and how is it discovered?

A common element construction defect is defined as a deficiency in the 1) design 2) materials and/or 3) workmanship in the common elements of a condominium. The defect typically poses a safety hazard, shortens the life expectancy of the common element and/or makes the common element partially or fully unusable. Construction defects, whether due to a deficiency in design, materials, or labor, are classified as either patent defects or latent defects.

A patent construction defect is readily apparent and discoverable based upon a reasonable inspection of the common elements. Examples of patent defects include visible holes in a building, missing gutters or downspouts, missing handrails, or missing chimney caps. Patent defects are typically discovered by board members, unit owners, or property managers through a casual observation of the common elements.

In contrast, a latent construction defect is concealed and not readily observable. Latent defects will only appear after the passage of time, and they are not something that would typically be discovered during the initial municipal inspection. Examples of common latent defects are as follows: 1) Collapsing retaining walls resulting from improper installation; 2) Cracking in the foundation or drywall caused by concealed foundation issues; 3) Electrical wiring that is not properly installed within common element walls; 4) Flooding by improper installation of the underground storm water drainage system; 5) Heaving or cracking of concrete porches, driveways or sidewalks due to poor drainage; 6) Leaks, mold and other water issues caused by improperly installed roofing, siding, flashing and/ or windows; 7) Noise related to insufficient insulation and poor sound protection; 8) Pipe bursts that result from a failure to insulate common element pipes; 9) Premature road failure resulting from failing to test and/or account for soil conditions, improper use of base course materials or drainage issues and 10) Missing or improperly installed trusses, which compromise the structural integrity of the roofing and/or building.

Given that latent defects are not discovered by a casual observer, a latent defect is typically only discovered after major problems occur or the condominium association commissions a detailed inspection of the common elements by a licensed engineer or other professional construction expert.

How Does the Warranty of Habitability Help Condominium Associations With Construction Defects?

In Illinois, condominium associations may be able to assert claims against the developer related to the construction of the condominium, including breach of the warranty of habitability or other implied warranties.  Recent Illinois cases have made it clear that the condominium association’s rights are limited to only being brought against the developer, even if that developer is insolvent or out of business.  Therefore, it is critical that, if at all possible, construction defects are identified as soon as possible or else the association may be left without an avenue of recovery to recover expenses incurred to correct defects.

How Should The Board of Managers Resolve Common Element Construction Defects?

1. Inspect the Common Elements. The board of managers and/ or the property manager should perform regular visual inspections of the common elements. Additionally, the board of managers should ensure that a reserve study is performed.
2. Consult with an Attorney. After the board of managers becomes aware of a potential construction defect, the board should immediately consult with an attorney to determine the potential claims and ensure that the claims are not time barred by the statute of limitations or repose.  Illinois law provides for different statutes of limitations (or repose) based on the type of claim asserted.  For example, the general construction statute of limitations is 4 years, but breach of written contract is 10 years.  When a cause of action accrues is a detailed analysis, but generally, it will start at the time the construction is completed or when the defect is discovered. While the statute of limitations could be extended through various theories, such as fraudulent concealment, among others, an association’s odds of success are greatly increased by vigilance of the board of managers. In addition, a developer or contractor often defends a construction defect claim by arguing that the defect was caused by natural wear and tear or improper maintenance by the association. Accordingly, the sooner the association acts, the better the chance of success.
3. Consult with an Engineer. After the board of managers consult with a condominium attorney, the board should hire a civil engineer or other qualified professional to prepare a report outlining the construction defects, the cause of the defects, a proposed fix, and the estimated cost to fix the problems. The engineering report will assist the board of managers and the condominium association’s attorney in evaluating the scope of the problems and determining the best course of action.
4. Negotiate with the Contractor/Developer.
5. After the board of managers become aware of a potential construction defect, the association should attempt to negotiate a resolution with the responsible parties. The process is typically started by sending a demand letter to the developer. The demand letter should 1) outline the known construction defects, 2) offer a proposed solution to the defects and 3) summarize the potential costs involved. If settlement negotiations prove unsuccessful, the board of managers should evaluate whether a lawsuit should be filed or whether the association should repair the problem itself.
6. File a Lawsuit or Repair the Defect. The board of managers has a fiduciary duty to ensure that the common elements are appropriately maintained, and it must act when learning of construction defects. A condominium association has two options with respect to dealing with a construction defect that a developer is unwilling to repair: 1) file a lawsuit or 2) fix the defect. The board of managers must decide whether the association is going to levy an additional assessment to fund a lawsuit or levy an additional assessment to repair the construction defect. While imposing an additional assessment is typically not popular with the unit owners, an unplanned expenditure is often unavoidable when a construction defect is discovered. Typically speaking, the assessment to pursue the lawsuit is cheaper than paying the entire cost of the repair. Accordingly, it is often more prudent for the board to pursue the developer that caused the construction defects instead of shifting that burden to the unit owners.

Contact Our Illinois Condo Construction Defect Attorneys to Help Solve Your Complex Issues

At Hirzel Law, PLC, our Illinois condo construction defect lawyers can help with your complex issues. We stand by our clients, offering the highest quality legal representation and promptly responding to our clients’ needs.

Contact Hirzel Law online or call 312-552-7669 (Chicago) to see how our Illinois condo construction defect lawyers can represent you.