By Ryan Gager, Hearn & Fleener, LLC
The new year is upon us and it remains to be seen if 2018 will bring more changes to construction defect litigation. After years of both sides battling, 2017 saw two major decisions in the construction defect industry. First, was the introduction of House Bill 1279, a step towards construction defect litigation reform. Whether it was a step in the right direction or a step backwards probably depends on who you ask. The bill was touted as a bipartisan effort toward addressing the housing squeeze in Colorado. Construction defect has long been a hot topic in Colorado as developers and builders cite how easy it is for homeowner associations to sue, along with the high cost of insurance as the reasons there are very few condominiums being developed throughout the state. Homeowner associations and those representing them argue that it is their only recourse when a building isn’t built correctly.
HB 1279 requires that a unit owners’ association obtain approval through a vote of unit owners before filing a construction defect claim. The bill requires an association to notify all unit owners and the developer or builder of a potential construction defect action, call a meeting where both the HOA and developer or builder have an opportunity to present arguments and potentially remedy the defect, and obtain a majority vote of approval from the unit owners to pursue a lawsuit before bringing that lawsuit against a developer or builder.
If you are a homeowner in a community that always wanted to be more involved or know what was going on, this bill ensures that. All owners will be notified of a potential claim, and all will have a voice in a community-wide vote. Majority approval of the owner vote does not include nonresponsive owners and the court will determine whether diligent efforts were made to contact the owner, whether mail was undeliverable, whether the owner is occupying the unit, and if other contact information such as email or a phone number were used. All of this means that unit owners should keep all records and contact information up-to-date with their HOA, to ensure they can be part of the vote.
The other significant development in construction defect litigation last year, was the Colorado Supreme Court’s decision in Vallagio at Inverness Residential Condo. Ass’n, Inc. v. Metro. Homes, Inc. The issue was whether a condominium developer can place a provision in the project’s governing documents, a provision that requires that any dispute with the developer be summitted to binding arbitration and prohibits the condo unit owners from amending the document to remove that provision. The state Supreme Court ruled that the homeowner association was wrong to sue the builder after disregarding bylaws, including the provision, that require binding arbitration to settle claims of construction defects.
The building industry favors binding arbitration as a more streamlined way of dealing with allegations of defects. However, HOAs and those representing them argue that this decision gives too much power to developers and builders. It remains to be seen if developers and builders will now use this decision to place provisions in governing documents of all developments.
Whether these decisions are considered victories for developers and builders or not, developers and builders still need to continue to implement successful strategies to mitigate risks of construction defect litigation. These include third-party inspections, insurance programs, familiarity with state code and standard requirements, disclosures to homebuyers and turnover procedures to associations.
The one thing we do know is, based on the decisions and outcomes of 2017, we are a long way from a definitive solution to construction defect in Colorado.
Ryan Gager is the Director of Marketing at Hearn & Fleener, LLC, a construction defect firm serving all of Colorado.