In the wake of Hurricane Sandy, thousands of homes have been severely damaged or destroyed and lives have been turned upside down. As the victims continue to deal with Sandy’s aftermath, it is very likely that many condominiums will find that preexisting construction defects in their buildings have been aggravated further by Sandy’s winds and rain. As such, it may be incumbent upon boards and management involved in litigation with sponsors/developers of their association as well as any contractors or subcontractors, to make repairs to their building to protect the association from further damage. In order to preserve the association’s rights and ensure that the association is not faced with claims of “spoliation of evidence” later, it is imperative that boards and/or management provide advanced notice to all parties, preserve any damaged materials for testing and documentation, and keep accurate records for the litigation. By notifying the defendants of any repairs the association makes, the defendants can choose to be present while the repairs are made, take photographs, and otherwise document the conditions they observe. This prevents defendants from later arguing that they did not do anything wrong and/or that the association’s repairs caused or exacerbated the conditions that are the subject of the lawsuit.
For those associations considering commencing a lawsuit against their sponsor/developer due to construction defects, Hurricane Sandy may have made this decision more urgent. In conjunction with the hurricane, it is important for condominiums to keep in mind additional deadlines/restrictions that may impact your decision to file a lawsuit. The first consideration is the applicable statute of limitations for a property damage claim, which is generally understood to be 6 years, and when this period begins to run. The second consideration is the statute of repose, which bars associations from bringing any property damage claims that arise more than ten years after work on the property is completed.