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The potential to face construction defects or potential defects at yours or your client's community associations, is no longer an "if" but a "when" - so putting together the right team of experts may be the most critical decision you and/or your clients will make. Below are some tips to follow when putting together your Construction Defects Team.
If you have any questions about this post, or for additional information, I can be reached toll free at 1-877-I-BEAM-SF (1-877-423-2673) or via email at allison@ibeamsf.com.
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ATTORNEY/LAW FIRM - The most critical professional you will need to get on your team is a good - no, a great - condo law attorney, preferably a successful settlement negotiator and litigator. You definitely don't want to hire someone inexperienced in these areas, or someone who comes cheap. Good condo law attorneys and law firms can offer billing at an hourly rate, on a contingency basis (you pay a percentage of the settlement IF they win your case), or some form of blended rate, which is a combination of hourly and contingency. Every client and HOA is different so don't feel forced to choose one rate structure over another if it doesn't work for your situation. Ask LOTS of questions, find out about success rates for settlements (you don't want to go to trial if you absolutely have to), ask to speak to former and current clients (some will be willing to tell you about their experiences), and make sure you feel comfortable before you hire anyone.
FORENSIC ARCHITECT - A forensic architect is the next critical expert to add to your team. They lead the inspections and destructive testing of defects and damages, recommend temporary and permanent repair, guide repairs, observe and extrapolate causes and provide their professional opinions to form your legal case against your developer. Your attorney may want to bring in their preferred forensic architect or forensic team, but before you make any decisions on this ask your attorney for a list of architects and get (and call!) references first. The architect selected will be contracted by the client (you or your HOA), so you need to have confidence in their abilities, availability, costs, results, etc.
Once you settle or win your case, you may need to hire an architect to prepare scope documents, or a project manual and drawings, and to provide contract administration and/or project management. There may be a value-add or economies-of-scale when hiring the same architect who handled your forensics, but I caution you - from experience - to evaluate whether this expert is so tied to the defect case that they don't have the ability to start fresh on the reconstruction (and especially if the settlement wasn't low or owners are faced with a special assessment for repairs).
RECONSTRUCTION CONTRACTOR - Next, you will need to source a qualified contractor who has experience in destructive testing and reconstruction of construction defects. As with the architect, your attorney may wish to bring in a reconstruction company or a forensics/reconstruction team that they've had success with. Make sure you ask questions, and get and call references so you have confidence in their recommendations. Since your attorney is best able to guide you here, I do NOT recommend you try to bring in your own experts (your cousin or neighbor's construction firm, etc.), as this may tend to undermine your case. You definitely need to source a contractor that has significant experience handling destructive testing and defect repairs and reconstructions.
HOMEOWNERS REPRESENTATIVE/ADVOCATE or PROJECT MANAGER - Lastly, you will want to seriously evaluate the benefit of hiring a solid homeowners representative or advocate to coordinate and oversee inspections, protect the interests of the Association and its members, and work closely with the property manager or management firm, defect attorney, and forensic team to prevent unnecessary delays and ensure your case is successful. A good representative/advocate should also be able to assist in developing realistic project repair budgets (as opposed to a list of damages developed by the architect for the defect case), help develop and manage Special Assessments, provide assistance to the property manager (most of whom are overloaded and under supported to begin with).
Once the defect case is settled or won, the project manager can assist in sourcing an architect, contractors, guide the HOA board of directors, manage and oversee vendors, schedule assess and deal with homeowners, and generally oversee the entire project - usually at a much lower hourly rate than the architect, and definitely with more expertise in working with Association managers, boards, and members.
