Berding | Weil's Community Association Alert Newsletter - Issue #86, February 2012
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Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #86 • February 2012
The Peril of Hidden Damage in a Community Association
How do you fix it, What Happens if you can't?
by Tyler P. Berding, Esq.
Every community association will face a major reconstruction project several times in the life of the development. This may occur because of clearly anticipated problems, such as re-roofing or re-painting, but it can also occur because of completely unanticipated (and unreserved-for) problems such as dry rot repair, soil subsidence, or leaks in windows and siding.
California's Davis-Stirling Act only requires that a community association reserve include those components that visual inspections of accessible areas reveal have a useful life of 30 years or less, and makes no allowance whatsoever for reconstruction due to hidden and unknown deterioration. There can be two decidedly different outcomes to any attempt to repair previously unknown damage. The first is a predictable project that succeeds in repairing the damage within the association's means. That is the subject of Part I. Part II, however, considers the situation where invisible damage is so unexpected and expensive to repair that it overwhelms the association's resources.
Part I - How to Extract a Successful outcome from an Unexpected Repair
Even during planned or expected repairs, surprises can occur when building components that are not “visible or accessible” are exposed during construction. Normal painting projects can reveal rotted areas due to long-term intrusion of water. A minor deck or siding repair can expose framing components that have allowed water to enter slowly for years without any way to get it out except evaporation. Problems with deteriorating concrete walkways or driveways due to the invasion of roots, or soil subsidence due to unconsolidated fill may develop so slowly that they escape notice. Or there can be a catastrophic event—a spontaneous failure that occurs when someone leans on a rotted balcony railing, for example. Three people in Antioch, California were severely injured recently when such a railing collapsed.
None of these building components would likely be included in the usual reserve account and unless detected by some other means, would not appear in the maintenance budget, yet the association in a typical condominium and in many planned developments, is nevertheless responsible for necessary repairs. Unexpected repairs for which there was no reserve funding. So now you have a collapsed balcony or maybe a lot of rotted framing-- what do you do? Follow these steps and you will improve your chances of successfully solving the problem.
1. Find the Right Expert
First, retain the services of someone who can advise the association on the proper repair. A general contractor, architect, engineer, or construction manager—each has specific expertise. Which expert will you need? A lot depends on the complexity and extent of the problem. If, for example, you have a failed balcony support beam—something that has rotted due to years of water intrusion—just replacing the failed beam may not be enough. You don't want it to happen again. And, just because only one balcony failed this time doesn't mean that there aren't others in the same condition.
In the example above, you would retain someone who is a pro with waterproofing. Would you choose a building consultant, a contractor, or an architect? Architects are more expensive, but for a very complex waterproofing issue you want someone who has enough skill and understanding to re-design the system to make it watertight. You would not want to simply replace part of a system that didn't work. On the other hand, if the basic design is sound, but the materials have failed to do their job, a materials consultant who specializes in waterproof membranes may be the right choice. In our practice, we would start with the architect or an engineer because this particular balcony railing example involves a life-safety issue and because a re-design and/or strength calculations may be necessary.
If the problem is relatively straightforward such that a re-design of the waterproofing system or a re-calculation of the strength of the system isn't required, and the project simply requires a re-build of the original design, then a building consultant or a general contractor might provide the necessary specifications. But if the basic structure has proven inadequate for other reasons, such as deflection over time, or failed joists or columns due to inadequately sized beams, for example, a structural engineer might be necessary to do the proper calculations and provide a re-design of the structural components. A few hours of an architect's time will usually be enough to determine the level of expertise required for the project, so if in doubt, hire an architect first. And in any case, if the job is big enough, it may also be wise to consider retaining a construction manager to represent the board throughout the process. Your expert can also help you determine the extent of the damage—as discussed further below, a sometimes critical bit of information.
Next Edition of the Newsletter: “What if the cost of repair exceeds all expectations?”

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