Condominum Owner's Guide to an Effective Warranty Claim
| 1. |
Identify the claim as either a “common area” elements (e.g., roof, interior plumbing,;etc.) or a separate interest (e.g., kitchen cabinets, interior painting, etc.). |
- a. If a “common area” construction warranty issue:
Make claim, in writing, to both the builder/developer and the homeowner’s association. The homeowner’s association has a fiduciary duty to all association members to maintain the common areas. This includes making and perfecting a warranty claim with the builder.
- b. If a “separate area” claim:
Make claim, in writing, to builder/developer. Follow the instructions in your new homeowner’s guide provided to you at the time of purchase. You may want to apprise your association’s Board of Directors of the issue, to inquire whether or not it is a widespread or reoccurring warranty claim.
| 2. |
Make all claims in writing per homeowner’s guide provided to you at the time of purchase. Keep copies! |
Avoid the “who’s on first” delay tactic by making all claims in writing to the appropriate warranty representative. Describe the warranty claim in detail. Follow guidelines, e.g., claim form that may be included in your new buyers packet. Keep copies! And with an abundance of caution, send certified mail, in addition to a fax and/or e-mail message.
| 3. |
Getting the proper repair, not a cosmetic band-aid. |
| |
This is the most difficult and common problem facing the property owner in a
warranty claim. How do they know that they are receiving an effective and permanent repair, when most times they are satisfied when the customer service representative simply shows up. |
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Here you must do your homework and maintain a vigilant paper trail. As a novice
(not a construction expert) it is reasonable for you to rely upon the builder’s
representative, but this is how to do it right: |
- a. Have the builder identify the source of the problem. If you have a roof leak,
where is it coming from and what is causing the problem or need for repair,
e.g., lack of flashing.
- b. Have the builder identify the repair process in detail. Inquire as to whether or not it is a permanent fix or just a temporary repair while further investigation takes place.
| 4. |
Write a confirming letter to builder that accurately sets forth the builder's
representations as the source and/or cause for the warranty claim (i.e. missing
roof flashing) and their representations as to the effectiveness of the repair
process (if permanent in nature).
This is important, if the warranty claim reoccurs outside the builder’s stated
warranty period. Then, just like a car, if the repair was not properly performed the
item is still covered under the initial warranty period. Keep copies. Certified mail
is best.
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| 5. |
What happens if the warranty claim appears to involve a major construction
repair,but builder insists on a “band-aid” type of repair. |
Proper steps here can avoid a possible construction defect lawsuit with years of protracted litigation and costs. First, retain your own construction expert to identify the source of the problem and an effective repair method. Second, have this expert meet with the builder’s representative to review the warranty claim and to discuss possible joint investigation and repair issues. Construction professionals generally agree on the source and/or cause of construction problems, but generally disagree on repair methodology. Typically, the builder elects to perform the most economic repair which in many cases is not an effective and permanent solution to the item of faulty construction. The talent of your construct expert is to apply his knowledge and experience to establish the need ti effect a full repair that will be adopted by the builder/developer.
| 6. |
What if builder refuses to accept the recommendations of your construction
expert and refuses to perform your expert’s proposed repair. |
Here, it is time to discuss the matter with an attorney with experience in construction defect and warranty issues. Local statutes must be reviewed for procedural requirements to perfect a claim, as well as appropriate statute of limitation issues. An attorney’s intervention at this time can cause the builder to re-evaluate his position to avoid costly litigation.
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