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Finding – and Fixing – Construction Defects

Our condominium in Brooklyn was constructed less than a year ago, yet several top-floor unit-owners are already complaining about water leaking into their apartments. In addition, other unit-owners report loose floorboards and windows that don’t properly close, and there’s also some concrete flaking off the exterior of the building. My fellow residents and I did not expect to see problems like these in a new building! The sponsor has been slow to respond, but he’s promised to send in a contractor to look at the problem areas. However, we’re now concerned that these may not be the only defects in our building, and we’re thinking we should hire our own professional to evaluate. What should we be looking for if we have the building surveyed?

Construction defects are a serious issue. In most cases they’re caused not by faulty design, but by contractors improperly following the project drawings and specifications – either through the use of incorrect, defective, or low-quality materials, and/or poor workmanship.

It’s critical to address all such issues as quickly as possible. Aside from retaining experienced legal counsel, one of your board’s first steps should be to engage a forensic engineering/architectural firm to conduct a comprehensive survey of the building’s major systems and components. As part of this survey, the forensic team should review the sponsor’s offering plan in detail and evaluate the property’s major systems, with a focus on compliance with the offering plan and applicable city codes. The investigation should encompass the exterior envelope; heating, ventilation, and air conditioning (HVAC) systems; plumbing and electrical systems; common areas; elevators; site exterior; garages; and any and all amenities.

The survey should include a questionnaire distributed to residents, asking them about the condition and functionality of the systems and components in their apartments. Based on the results, the survey team will visit a representative number of apartments with reported issues to look for signs that might indicate larger building-wide problems. After conducting the initial visual site work, the survey team may recommend physical testing and/or investigative probes to better determine the underlying construction and conditions of the building’s systems. These tests and probes can be costly, so your board will have to decide whether it wants to ask the sponsor to cover some or all of the costs.

The forensics team should generate a detailed report that describes existing conditions, evaluates reported problems and complaints, analyzes the nature and extent of defects, forecasts possible problems, prioritizes recommended repair and upgrade work, and provides a timetable and preliminary budget projections on the cost to implement the recommendations. This provides a roadmap for work to be done and also serves as essential documentation for use in possible litigation.

The most common types of construction defects fall into several categories:

Roof Leaks

There are many different types of roofing systems of varying quality and lifespan, but even the best roofing system is destined to fail if not properly installed. Hopefully, your building’s roofing system has a No Dollar Limit warranty of at least 20 years, which will cover you against manufacturing defects and workmanship errors.

Façade Leaks

While the potential sources of leaks aren’t always easy to pinpoint, common culprits are cracked, deteriorated masonry; defective pointing between bricks; and dislodged or missing caulking around windows. In cold weather, trapped water freezes and expands, causing bricks, stones, and other masonry to loosen, creating more opportunity for leaks. Long-term water penetration can eventually lead to structural damage. In addition, air leakage can cause drafty interior spaces and increased energy costs. Mold is another problem you would not expect to see in a new building, but where there’s moisture, mold follows. Water testing, investigative probes, and specialized diagnostic tools such as infrared thermography can help track leaks and the damage that they’ve caused.

Windows

Defective window installations can be a major issue in newly constructed buildings. Faulty installation can lead to air and water leaks, difficult operation, faulty gaskets, condensation between panes, and locks that don’t work.

Wooden Floors

Wooden floors – solid or engineered – naturally expand and contract over time and must be acclimated before installation, then installed with adequate embedment and expansion joints. Faulty installation can quickly lead to loose, uneven and/or squeaking floor boards, and any water penetration can cause the boards to cup, warp, and rot.

Fire-stopping

Fire-stopping is designed to limit and contain the movement of flames, smoke, toxic gases, and heat within a building during a fire. Missing or inadequate fire-stopping significantly increases the risk of property damage, injury, and death. Buildings should have fire-stopping installed in seals around pipes, conduits, and ducts that penetrate fireproof floors and walls. Inadequate fire-stopping is a particularly costly defect to correct since it’s typically hidden behind finished wall systems.

Indoor Air Quality

Poor ventilation and inadequate exhaust in bathrooms and kitchens are common complaints. Missing and/or improperly installed fans, ducts, and associated equipment are the most frequent causes.

Newer high-rise buildings are particularly prone to ventilation and exhaust issues when the outside temperature is significantly lower than the temperature inside the building. As heat rises inside, the building acts as a chimney, pulling in cold air (along with odors) from the lower levels up through the top floors. This type of problem can be challenging to alleviate and may require costly mechanical ventilation solutions.

Inadequate airflow and odor issues can also be caused by ducts clogged with construction debris, or ducts that were poorly fitted because of careless workmanship.

Heating and Cooling

Improperly functioning and/or unbalanced HVAC systems are another common problem that leads to complaints of poor heat, inadequate air conditioning, excessive humidity levels, and other air quality problems. Condensation can also form, potentially leading to moisture and mold.

Inferior Substitutions

Condominium offering plans typically include a clause that allows sponsors the right to make appliance and fixture substitutions of “equal or better quality.” This can be exploited to use inferior substitutions to save on costs at the expense of quality. It is important to compare performance criteria to see that the equipment installed not only complies with applicable codes, but also what was promised in the offering plan.

Remedies

Once your building has been evaluated and any design and/or construction defects identified, your forensic team will make recommendations on repairs and/or upgrades that need to be undertaken. The engineers and architects who evaluated your building may also be needed to provide expert witness testimony if your board decides to bring suit against the sponsor or contractor for construction defects.

A comprehensive plan for your building’s upkeep is highly recommended. It should include periodic inspections, regular maintenance and repairs, and keeping an eye on warranty expiration dates. This will go a long way toward maintaining your building’s long-term performance and safeguarding your investment.

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