Declarant and Structural/Construction Repairs

Started by MarleneP1 • 5 replies • 1437 views

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MarleneP1 (Texas)
Posts: 16

Posted:

I am with a Condo Association in Texas. The current Declarant is not the original Developer. Current Declarant bought the property after building construction was complete. He only had to finish the insides of some of the units. There were many non-sold units in the deal.

The problem - we have found that there is major water intrusion during rains. Declarant did hire and pay for an engineer investigation. The investigation found many problems stemming from very poor construction. The investigation showed issues with the roof, windows and doors. This is absolutely devastating news for the present owners but alas I am not done.

After the current Declarant received the engineers report and two or three bids on the cost to make all the necessary repairs he is now saying that he doesn't feel that he is the responsible party. Until that moment he told us he would take care of this. He now basically claims that he just bought the property as the Declarant and is not the developer therefore not responsible.

We found the original developers - one has passed away and the other has been out of business for a very long time. There is no insurance policy to fall back on with them. We found the original construction company that built the community - they are still active today and have been down to inspect the issue themselves. All discussions with them are with the current Declarant. They do have an insurance policy but it is not looking like they are going to help us with this either.

I have searched everywhere I can think of to find "The responsibilities of Declarants" but all I am finding is Declarants Rights and Special Rights. I wonder if the developer/declarant can just convey the property without the responsibility of construction/structural repairs. I have tried to get a copy of the sale of the property to the current declarant through the internet but nothing comes up.

We are in discussions with an attorney about suing but that is a long drawn out process and we need to get the repairs done. It has already been longer than a year.

Can anyone help me with this in any way at all.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Marlene,

I found this South Carolina case that may be of some help to you. The issues are similar and the court cited cases from several other states.
See: http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=25453

KerryL1 (California)
Posts: 14,550

Posted:

Sorry, I have to get ready for a Board meeting:

We finally hired construction defect attorneys who got us a nice settlement, but it took 2-1/2 years. they got pockets of funds from various suppliers and even some manufacturers for basically the same reasons/obstacles that you have.

We had one item--close to $1million--that we had to take out a loan on because it was an emergency. Yes, it was more than covered with our settlement funds.

Just a quick summary here. Get the right kind of attorneys!

JonD1
Posts: 2,350

Posted:

Not sure how things work in Texas but here I would suggest you make the time to contact the attorney generals office. As this is a property yet to be turned over perhaps their office might be able to encourage the parties involved to make the necessary repairs.

If not I would find a lawyer experienced in HOA matters NOT someone in general law practice and move forward to have all the parties held accountable.
When you say WE who are you referring to and how man owners are involved out of the total ownership?

Good luck.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Most developers post a performance bond with the City/County.

The Association needs to contact an attorney and see about filing a claim on that money prior to the County/City returning it to the Developer.

MarleneP1 (Texas)
Posts: 16

Posted:

Thanks to all who have offered direction on this.

To JON: When I say WE, I work for the management company that runs the Owner's Association.

At last update, the current declarant has filed suit against the original builder and that is where it sits at this point. The original builder is supposedly attempting to get their insurance company to honor the claim against them. No word on that.

There are two owners who are attorneys, one of which does handle HOA matters in a major city here in the state. However, the search is on for an outside attorney so there can be no conflict of interests. The good thing about the owner/attorney is that he can explain from the legal aspect to the other owners in the community.

I have forwarded all the information everyone here has offered to my boss and one Board member (the only owner on the Board). I still think that the Association should speak with the State Attorney General and ask if they can send the current Declarant notice that no matter the outcome he cannot claim all the Declarant rights and not have any responsibility for repairs. Things seem to move very slowly meanwhile every time it rains here is adding more damage.

I am not in a position to push the Board (Declarant has two employees who are Board members). I have done all I know to do.

Once again, Thanks to everyonw who has offered direction, it is greatly appreciated.

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