At our San Diego construction defect law firm, we believe in maintaining regular and ongoing communication with our clients and potential clients. It is the cornerstone of our service, which is why we want to share a common question with you about construction defect litigation. With this info, we want to make it easier for our clients to understand more about construction defects and the litigation process. It can be a complicated process.
- What are the fiduciary responsibilities of Homeowner Association Board Members in California?
- Board member duties include properly handling potential construction defect claims. Civil Code Section 1365 (f) (1) provides that the scope of duties of a director includes the decision to conduct an investigation of the common area for latent defects prior to the expiration of the statute of limitations. The Board’s decision whether to investigate defects is one that the Board should make after exercising reasonable inquiry as required by Corporations Code Section 7231 (a) and relying on the advice of consultants such as architects and engineers, as well as legal counsel, as set forth in Corporations Code 7321(b).
Satisfying these responsibilities used to be much easier for Board members. Before the passage of Civil Code Section 895 et seq, (commonly known as SB 800) generally, a Board had ten years from completion of the project to bring a construction defect lawsuit against the builder (period was tolled while builder controlled the Board). If the board waited more than 10 years, the association generally lost its right to recover. This sometimes resulted in a Board having to levy large special assessments against its members to repair defects. The Board members’ duties in this regard are much more complex because there are now different statutes of limitations for different defects. For example, there is now a one-year statute of limitation for drainage and irrigation defects. There is now a four-year statute of limitation for certain plumbing defects and some hardscape and driveway defects. As a result, Board members often have to confront defect issues immediately upon joining a Board.
Both SB 800 and Calderon (Civil Code 1375, et seq,) provide an important process allowing the Board to stop (toll) the clock from running, while investigating potential construction defects without actually filing a lawsuit. Calderon provides for a six-month tolling of the statute of limitations while evaluating a potential defect case. SB 800 permits the tolling of the statute while the builder considers making a repair. This can often take several months.
Finally, Civil Code Section 1375, et seq. does not permit the Board of Directors to delegate the decision of whether to file or not file a lawsuit to the association members. This is the sole duty and responsibility of the Board of Directors as set forth in Civil Code Section 1365.7
Need a Construction Defect Attorney in Southern California?
If you are a homeowner or association seeking representation in construction defect litigation, our law firm based in San Diego can help represent you. We serve all areas in Los Angeles, Orange County, San Diego, Riverside and San Bernardino
We have more than 35 years of experience handling and winning all types, including difficult, construction defect cases. To contact us, call 844-492-7474 or visit our San Diego construction defect contact page.
To learn more about California construction defects and the construction defect litigation process, click our San Diego construction defect litigation page
