Construction Defect


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Construction Defect Laws

California Condominum Conversions

Non-Payment of Assessments by Developer

Self-Insurance by Developer

Many homeowner associations and homeowners in California new home developments are finding that the common areas of their communities and their individual homes have construction defects which are not attributable to the lack of ordinary maintenance. These construction defects include roof leaks, deck leaks, mold infestations, deteriorating streets, improper drainage, structural failure, inadequate soil preparation, faulty electrical wiring, insufficient insulation and sound proofing, inadequate equipment, cracked slabs, defective swimming pools, peeling paint, Chinese Drywall and other defects too numerous to list. The construction defects can be caused by poor design, poor construction, poor choice of materials or defective materials.  See: Common Construction Defects, Developers Breach of Fiduciary Duty, Defective Vegetative - Green Roofs, and Defective Grasscrete - Porous Pavement Systems.

Nearly all CC&Rs impose upon homeowner associations the duty to maintain and repair the common areas. Legally, this duty includes paying for the correction of defective conditions, including those set forth above. These repairs, which can be quite expensive, can be paid for in several ways:

First, the association can pay for the cost of repairs out of its reserves. However, in most cases the reserves are insufficient.

Second, the amount required to pay the cost of repairs can be obtained by specially assessing the individual homeowners or borrowing funds.

Third, the association may seek redress from the builder of the project who in many cases is legally responsible for the cost of repairs. In those rare situations where a developer has no insurance, we are prepared to pierce the corporate veil.

Michael T. Chulak & Associates represents homeowner associations and property owners throughout California on a contingency basis in dealing with builders who are responsible for defective construction. Generally, we can meet or beat the contingent fee percentages proposed by our competitors.

We regularly advance all or some of the costs of litigation including expert fees.  Contact us for additional information.

We have prepared a list of Frequently Asked Questions about Construction Defects, which should answer most questions you have. We have also prepared a Due Diligence Review Checklist to assist you in understanding the process and a Construction Defects Glossary. Ask us about when punitive damages may apply.

Associations and property owners should know their legal rights and not be misled or intimidated when attempting to seek redress for construction defects. The attorneys with Michael T. Chulak & Associates are available to assist you in this regard. We are homeowner/consumer advocates. There will be no charge for the initial consultation.

Individual Homeowner Claims

Against Developers – Home Builders

When the board of directors of a homeowners association in California refuses or declines to make a claim against a developer for construction defects, even one individual homeowner may do so. Since every homeowner in a common interest development, such as a condominium association, owns an undivided interest in all of the common areas, they have legal standing to seek damages from a developer who has constructed defective common area components. In addition, every homeowner has standing to make claims for defects in their own homes.

Our firm represents individual homeowners and groups of homeowners (as well as associations) on a contingency basis, in making construction defect claims against developers anywhere in California. For most cases, we will advance some or all out of pocket costs related to such claims. Claims against home builders must be made timely. Failure to miss an important deadline can result in the loss of some or all legal rights to make a claim and obtain compensation for defective construction. Consequently, it is critically important that you contact one of our construction defect attorneys as soon as you identify any serious construction defects in your home and common areas.

Individual Homeowner Claims

Against Homeowner Associations

We are one of a few experienced HOA law firms in California that represents individual homeowners in claims against their association. We also provide and have provided legal services to hundreds of homeowner associations throughout California. Most HOA law firms represent only homeowner associations.

A legal claim against an owner's homeowner association should only be made when it is clear that the board will not remedy a legitimate complaint involving CC&R compliance that is of a serious nature. Examples include failure to maintain common areas leading to water intrusion, mold, major cracks, or earth movement. Our firm generally represents individual homeowners on a contingency basis and usually advances some or all of the out of pocket costs in connection with these claims. Call us to discuss your claim.

Owner Claims Against HOA

The most common claim made by the owners of condominium units against their homeowner associations is that their unit is experiencing water intrusion because the association has failed to maintain the common area. Generally, this involves leaking roofs, decks, planters, walls, and windows, and often improper slopes and drainage. When a condominium unit owner makes a claim against the association, it is generally because the statue of limitations has run and therefore a claim cannot be made against the developer of the condominium community.

When a condominium unit owner has exhausted his or her patience with the board and files a lawsuit against the association, (not the board), the association will almost always contact its insurance company. Assuming there is coverage, the insurance company will hire a law firm to represent the association and the law firm will hire any appropriate experts needed to investigate the situation and provide advice on how to remedy the problem.

As part of the process, the plaintiff's attorney will hire one or more experts to provide advice and repair cost estimates.

After all experts have completed their investigations, have developed a scope of repairs, and cost estimates, a mediation session will be arranged so that the parties can avoid further litigation and settle the matter short of going to court. In 99% of these matters, the dispute is settled in mediation.

Settlements usually, but not always, consist of the following:

The association agrees to repair the common area in a manner that is acceptable to the expert working for the plaintiff's attorney;
The association agrees to pay the plaintiff a dollar amount sufficient to make interior repairs and pay for loss of use; and
The association agrees to pay all of the plaintiff's attorney fees and costs.
Most importantly, depending upon the insurance coverage, the cost of settling the case will be paid in part or completely by the insurance company.

If you are a member of an association board, don't let this happen to your association. A competent management company combined with good legal advice can save your association thousands of dollars.


After Your Construction Defect Case is Settled

When a construction defect case against a developer is settled or a judgment is obtained, the plaintiff’s involvement is not over. At the minimum, the following must be considered:

  • Establishing priorities for repairs;

  • Approving written repair specifications and bidding instructions;

  • Establishing a budget for repairs;

  • Obtaining written bids;

  • Interviewing general contractors;

  • Completing due diligence on general contractors;

  • Interviewing construction managers;

  • Completing due diligence on construction managers;

  • Negotiating the repair contract price, terms, and warranties;

  • Drafting the construction contract;

  • Drafting the construction management contract;

  • Considering upgrades or improvements;

  • Evaluating whether the association should borrow funds;

  • Making the required Civil Code Section 1375.1 Disclosure to the members of the association.

The construction defect attorneys with Michael T. Chulak & Associates can assist you with the decision process. One problem is enough.


Loans to Homeowner Associations for

Construction Defects

For various reasons, homeowner associations are sometimes short of the funds required to make 100% of all needed repairs after they settle their construction defect claim or obtain a judgment. When this happens, associations often prefer to obtain a loan to cover any shortfall rather than special assess the members. Our firm is unique in being in a position to guarantee the availability of funds should the need arise. The terms of such a loan and guarantee must be in writing. We would be pleased to discuss the details with you at any time.


Mitigation of Damages to People and/or Property

Mitigation of damages is often referred to as the doctrine of avoidable consequences. The doctrine requires that a plaintiff who is injured by a defendant take reasonable steps to minimize his damages. It applies after the defendant causes the harm but at a time when the plaintiff still has an opportunity to avoid at least some of the consequences.


Duty to Mitigate

The mitigation doctrine imposes a duty upon a plaintiff to use ordinary care and reasonable diligence to minimize damages and to avoid increasing the damages.


Application of the Mitigation Rule

The mitigation rule applies to injuries to a person or to property in an action for a breach of contract or tort such as negligence.


Reasonableness Standard

Plaintiffs may generally use their own discretion in dealing with their injuries. However, such reasonable discretion does not permit the plaintiff to stand by and watch his losses accumulate so as to seek greater damages from the defendant who caused the injury. Instead, courts impose a reasonableness standard upon the plaintiff. He must expend at least a minimal effort and/or expense to minimize losses if it is reasonable under the circumstances to do so. He is not required, however, to go to extraordinary lengths, spend sums beyond his means, do what is impracticable, give up important and valuable rights, or put himself in any danger in order to minimize damages.

The determination of whether the plaintiff’s attempt at minimizing damages was reasonable requires a court to consider the amount of time between the injury and the plaintiff’s mitigation efforts, the plaintiff’s awareness of the need to minimize losses, the opportunities for the plaintiff to mitigate damages, the cost of mitigating damages, and the plaintiff’s ability to pay.

The fact that a plaintiff has failed to minimize damages after attempting to do so does not prove that he did use reasonable means in his attempts.


Burden of Proof

A defendant has the burden of proving that the plaintiff failed to take reasonable steps to minimize his damages, that the damages could have been avoided, and that the avoidable damages can be measured with reasonable certainty.


Effect of the Mitigation Rule

If a plaintiff fails to reasonably attempt to mitigate his damages, any damages that are awarded to him may be reduced by the amount of damages that he could have avoided.


Recovery of Costs

A plaintiff who takes reasonable measures to minimize his damages may recover the reasonable costs that were expended in doing so, even if his mitigation attempts have failed or increased his losses.


Mitigation by Defendant

Just as plaintiffs are required to mitigate their damages, defendants can be held accountable by a court to reasonably mitigate the damages caused by the defendant.


Mitigation Plan

Whether you are a plaintiff or defendant, we can assist you in formulating a Mitigation Plan designed to protect your legal interest. This part of a case should never be overlooked.


Expert Witnesses and Consultants Needed

In connection with our extensive litigation practice, Michael T. Chulak & Associates regularly utilizes the services of expert witnesses and consultants. If you believe you have the knowledge, experience and overall ability to provide these services, we invite you to complete an application and return it with your current resume. Upon receipt, we will enter the information into our database for use by our litigation attorneys and support staff. Please view our websites to become familiar with our areas of practice.

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Areas Served:

Alameda County:

Alameda, Albany, Berkeley, Dublin, Emeryville, Fremont, Hayward, Livermore, Newark, Oakland, Piedmont, Pleasanton, San Leandro, Union City

Contra Costa County:

Antioch, Brentwood, Clayton, Concord, Danville, El Cerrito, Hercules, Lafayette, Martinez, Moraga, Mountain View, Oakley, Orinda, Pinole, Pittsburg, Pleasant Hill, Richmond, San Pablo, San Ramon, Walnut Creek

Fresno County:

Auberry, Big Creek, Biola, Bowles, Calwa, Cantua Creek, Caruthers, Centerville, Clovis, Coanlinga, Del Rey, Dunlap, Easton, Firebaugh, Fowler, Fresno, Friant, Highway City, Huron, Kerman, Kingsburg, Lanare, Laton, Mendota, Mercy Hot Springs, Minkler, Orange Grove, Parlier, Pinedale, Prather, Raisin City, Reedley, Riverdale, Rolinda, San Joaquin, Sanger, Selma, Shaver Lake, Squaw Valley, Tarpey Village, Three Rocks, Tollhouse, Tranquility

Imperial County:

Brawley, Calipatria, Calexico, El Centro, Heber, Holtville, Imperial, Niland, Salton City, Seeley, Westmorland

Kern County:

Arvin, Bakersfield, Bear Valley Springs, Bodfish, Boron, Buttonwillow, Caliente, California City, China Lake Acres, Delano, Ford City, Frazier Park, Golden Hills, Kernville, Lake Isabella, Lamont, Lebec, Lost Hills, Maricopa, McFarland, Mojave, North Edwards, Oildale, Pine Mountain Club, Ridgecrest, Rosamond, Rosedale, Shafter, South Taft, Stallion Springs, Taft, Taft Heights, Tehachapi, Wasco, Weedpatch, Weldon, Wofford Heights

Kings County:

Armona, Avenal, Corcoran, Grangeville, Guernsey, Halls Corner, Hardwick, Hanford, Home Garden, Hub, Island District, Kettleman City, Lakeside, Lemoore, Lemoore Station, Quay Valley Ranch, Santa Rosa Rancheria, Stratford

Los Angeles County:

Acton, Agoura, Agoura Hills, Agua Dulce, Alhambra, Altadena, Arcadia, Arleta, Artesia, Avalon, Azusa, Baldwin Hills, Baldwin Park, Bassett, Bell, Bell Canyon, Bell Gardens, Bellflower, Beverly Hills, Bouquet Canyon, Box Canyon, Burbank, Calabasas, Calabasas Hills, Canoga Park, Canyon Country, Carson, Castaic, Century City, Cerritos, Chatsworth, Claremont, Commerce, Compton, Covina, Cudahy, Crystalaire, Culver City, Del Sur, Diamond Bar, Downey, Duarte, East Los Angeles, East Rancho Dominguez, El Monte, El Segundo, Encino, Firestone Park, Flintridge, Gardena, Glassell, Glassell Park, Glendale, Glendora, Granada Hills, Hacienda Heights, Hawaiian Gardens, Hansen Dam, Hawthorne, Hermosa Beach, Hidden Hills, Highland Park, Hollywood, Huntington Park, Industry, Inglewood, Irwindale, La Canada Flintridge, La Crescenta- Montrose, La Habra Heights, La Mirada, La Puente, La Verne, La Canada, Lake Hughes, Lake Los Angeles, Lake View Terrace, Lakewood, Lancaster, Lawndale, Leimert Park, Lennox, Leona Valley, Lincoln Heights, Littlerock, Lomita, Long Beach, Los Angeles, Lynwood, Malibu, Manhattan Beach, Marina Del Rey, Maywood, Mission Hills, Monrovia, Monte Nido, Montebello, Monterey Park, Mount Baldy, Mount Wilson, Newhall, North El Monte, North Hills, North Hollywood, Northridge, Norwalk, Pacoima, Palisades, Palmdale, Paramount, Pearblossom, Pico Rivera, Pomona, Quartz Hill, Rancho Dominguez, Rancho Palos Verdes, Rancho Park, Redondo Beach, Reseda, Ritter Ranch, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, San Pedro, Santa Clarita, Santa Fe Springs, Santa Monica, Saratoga Hills, Saugus, Sherman Oaks, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Stevenson Ranch, Studio City, Sun Valley, Sun Village, Tarzana, Temple City, Toluca Lake, Topanga, Torrance, Tujunga, Universal City, Val Verde, Valencia, Valley Village, Van Nuys, Venice, Vernon, Walnut, Walnut Park, West Covina, West Hills, West Hollywood, West Los Angeles, West Toluca Lake, Westchester, Whittier, Wilmington, Windsor Hills, Winnetka, Woodland Hills

Marin County:

Bel Marin Keys, Belvedere, Black Point - Green Point, Bolinas, Corte Madera, Dillon Beach, Dogtown, Fairfax, Hamilton, Ignacio, Inverness, Inverness Park, Kentfield, Lagunitas - Forest Knolls, Larkspur, Las Gallinas, Lucas Valley - Marinwood, Greenbrae, Marin City, Marshall, Mill Valley, Muir Beach, Novato, Point Reyes Station, Ross, San Anselmo, San Marin, San Rafael, Santa Venetia, Sausalito, Sleepy Hollow, Stinson Beach, Strawberry, Tamalpais - Homestead Valley, Tiburon, Woodacre

Monterey County:

Bradley, Carmel-by-the-Sea, Del Rey Oaks, Gonzales, Greenfield, King City, Marina, Monterey, Pacific Grove, Pebble Beach, Salinas, Sand City, Seaside, Soledad

Napa County:

Aetna Springs, American Canyon, Angwin, Berryessa Highlands, Calistoga, Capell Valley, Chiles Valley, Circle Oaks, Deer Park, Dry Creek, Gordon Valley, Lokoya, Los Carneros, Moskowite Corner, Mt. Veeder, Napa, Oakville, Pope Valley, Rutherford, Soda Canyon, Spanish Flat, St. Helena, Vichy Springs, Yountville

Orange County:

Aliso Viejo, Anaheim, Balboa Island, Brea, Buena Park, Corona Island, Costa Mesa, Cypress, Dana Point, Foothill Ranch, Fountain Valley, Fullerton, Garden Grove, Huntington Beach, Irvine, La Habra, La Palma, Ladera Ranch, Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Lake Forrest, Los Alamitos, Mission Viejo, Newport Beach, Newport Coast, Orange, Placentia, Rossmoor, San Clemente, San Juan Capistrano, Santa Ana, Santa Ana Heights, Seal Beach, Stanton, Tustin, Tustin Foothills, Villa Park, Westminster, Yorba Linda

Riverside County:

Anza, Banning, Beaumont, Bermuda Dunes, Blythe, Cabazon, Calimesa, Canyon Lake, Cathedral City, Cherry Valley, Coachella, Corona, Desert Hot Springs, East Blythe, East Hemet, El Cerrito, Glen Avon, Hemet, Highgrove, Home Gardens, Homeland, Idyllwild-Pine Cove, Indian Wells, Indio, La Quinta, Lake Elsinore, Lakeland Village, Lakeview, Mecca, Mira Loma, Moreno Valley, Murrieta, Murrieta Hot Springs, Norco, Nuevo, Palm Desert, Palm Springs, Pedley, Perris, Quail Valley, Rancho Mirage, Riverside, Rubidoux, San Jacinto, Sun City, Sunnyslope, Temecula, Thousand Palms, Valle Vista, Wildomar, Winchester, Woodcrest

Sacramento County:

Citrus Heights, Elk Grove, Folsom, Galt, Isleton, Rancho, Rio Linda, Rosemont, Sacramento

San Bernardino County:

Adelanto, Apple Valley, Barstow, Big Bear, Big Bear City, Chino, Chino Hills, Colton, Crestline, Fontana, Grand Terrace, Hesperia, Highland, Joshua Tree, Lake Arrowhead, Landers, Loma Linda, Montclair, Morongo Valley, Needles, Ontario, Rancho Cucamonga, Redlands, Rialto, Running Springs, San Bernardino, Twentynine Palms, Upland, Victorville, Yucaipa, Yucca Valley

San Diego County:

Carlsbad, Chula Vista, Coronado, Del Mar, El Cajon, Encinitas, (Cardiff-by-Sea, Leucadia, Olivenhain), Escondido, Fairbanks, Ranch, Fallbrook, Imperial Beach, Julian, La Mesa, Lake San, lakeside, Lemon Grove, National City, Oceanside (San Luis Rey), Poway, Romona, Rancho San Diego, Rancho Santa Fe, San Diego, San Marcos, Santee, Solana Beach, Hidden Meadows, San Diego County Estates, Spring Valley, Vista

San Francisco County:

San Francisco City

San Joaquin County:

Escalon, Lathrop, Lodi, Manteca, Ripon, Stockton, Tracy

San Luis Obispo County:

Arroyo Grande, Atascadero, Avila Beach, Baywood-Los Osos, Cambria, Cayucos, Grover Beach, Lake Nacimiento, Los Osos, Morro Bay, Nipomo, Oceano, Paso Robles, Pismo Beach, San Luis Obispo, San Miguel, San Simeon, Santa Margarita, Templeton

San Mateo County:

Atherton, Belmont, Broadmoor, Brisbane, Burlingame, Burlingame Hills, Colma, Daly City, Devonshire, East Palo Alto, El Granada, Emerald Lake Hills, Foster City, Half Moon Bay, Highlands-Baywood Park, Hillsborough, Kings Mountain, La Honda, Loma Mar, Menlo Oaks, Menlo Park, Millbrae, Montara, Moss Beach, North Fair Oaks, Pacifica, Pescadero, Portola Valley, Princeton-by-the-Sea, Redwood City, San Bruno, San Carlos, San Gregorio, San Mateo, Sky Londa, South San Francisco, West Menlo Park, Woodside

Santa Barbara County:

Ballard, Buellton, Carpinteria, Gaviota, Goleta, Guadalupe, Hollister Ranch, Hope Ranch, Isla Vista, Lompoc, Los Alamos, Los Olivos, Mission Canyon, Mission Hills, Montecito, Orcutt, Santa Barbara, Santa Maria, Santa Ynez, Solvang, Summerland, Toro Canyon

Santa Clara County:

Alum Rock, Alviso, Bell Station, Bell's Station, Burbank, Burnett, Cambrian Park, Campbell, Casa Loma, Chemeketa Park, Coyote, Cupertino, East Foothills, East San Jose, Fruitdale, Gilroy, Hollenbeck's Station, Lexington Hills, Loma Chiquita, Los Altos, Los Altos Hills, Los Gatos, Loyola, Loyola Corners, Milpitas, Monte Sereno, Morgan Hill, Mountain View, Palo Alto, Redwood Estates, Rucker, San Antonio, San Jose, San Martin, Santa Clara, Saratoga, Stanford, Sunnyvale, Willow Glen

Solano County:

Benicia, Bahia, Birds Landing, Bucktown, Collinsville, Cordelia, Dixon, Elmira, Fairfield, Green Valley, Maine Prairie, Rio Vista, Scandia, Suisun City, Vacaville, Vallejo

Sonoma County:

Agua Caliente, Asti, Bloomfield, Bodega, Bodega Bay, Bodega Harbour, Boyes Hot Springs, Bridgehaven, Buena Vista, Cadwell, Camp Meeker, Carmet, Carneros, Cazadero, Cloverdale, Cotati, Cozzens Corners, Cunningham, Diamond A Ranch, Duncans Mills, East Guernewood, El Bonita, El Verano, Eldridge, Fetters Hot Springs, Forest Hills, Forestville, Freestone, Fulton, The Geysers, Geyserville, Glen Ellen, Graton, Guerneville, Guernewood Park, Hacienda, Healdsburg, Hessel, Hilton, Hollydale, Jenner, Jimtown, Kellogg, Kenwood, Knowles Corner, Korbel, Lakeville, Larkfield-Wikiup, Lytton, Mark West, Mark West Springs, Mercuryville, Mesa Grande, Mirabel Heights, Mirabel Park, Mission Highlands, Monte Cristo, Monte Rio, Montesano, Noel Heights, Northwood, Oakmont, Occidental, Odd Fellows Park, Penngrove, Petaluma, Rio Dell, Rio Nido, Rohnert Park, Rolands, Roseland, Russian River Terrace, Salmon Creek, Santa Rosa, Schellville, Sea Ranch, Sebastopol, Serena del Mar, Soda Springs, Sonoma, Summerhome Park, Temelec, Two Rock, Valley Ford, Venada, Vacation Beach, Villa Grande, Vineburg, West Guernewood, Windsor

Ventura County:

Camarillo, Channel Islands, Faria Beach, Fillmore, Moorpark, Newbury Park, Oak Park, Oak View, Ojai, Oxnard, Port Hueneme, Santa Paula, Saticoy, Somis, Simi Valley, Thousand Oaks, Ventura (San Buenaventura), Westlake Village

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