By Brendan P. Bunn, ESQ., CCAL
By Olga Tseliak, ESQ.
Brendan is a shareholder of Chadwick, Washington, Moriarty, Elmore & Bunn, P.C. and has been practicing community association law since 1993. He counsels the firm’s clients on the broad range of community association law issues and is also an experienced litigator. Brendan has been an active member of the Washington Metropolitan Chapter of CAI since 1993, served on the Board of Directors from 2000-2006, was elected President of the Chapter in 2005, and was inducted into the Chapter’s Hall of Fame in 2007. Brendan is a member of the College of Community Association Lawyers (CCAL) and is currently serving on the CCAL’s Board of Governors.
Olga is an associate attorney with the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn P.C. Her practice is devoted to community association representation, including such matters of covenant interpretation and enforcement, contract law and collections. She is an active member of WMCCAI’s Quorum Editorial Committee.
DON’T SLEEP ON YOUR RIGHTS:
Virginia Condominiums and Statutory Warranty Claims on Structural Defects
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ewly constructed residential buildings can be extremely attractive to purchasers in their apparent promise to be repair-free for years to come. Given this expectation, it can be extremely disheartening and aggravating for new unit owners to discover leaking roofs or malfunctioning HVAC systems or any number of structural problems just a year or two into ownership in the condominium. These issues can often be traced to defects in the original design or construction, which arguably should be addressed by the builder/developer under the construction warranty.
For an association board of directors, a structural warranty defect presents a serious issue because under the condominium instruments, the association is typically responsible for performing and financing the ongoing maintenance and/or repair of the common elements. 18 | QUORUM
Therefore, it is critical for condominium boards to be aware of the statutory warranty on the common elements under the Virginia Condominium Act to avoid being “stuck” with massive repairs for remedial work that should have been done by their condominium developer.
What is the Warranty?
intended use of all or part of the structure which require repair, renovation, restoration or replacement.” This definition is fairly broad, and there are few Virginia court decisions that construe the language. In practice, association attorneys typically argue for a broad reading of this term to best serve their condominium clients.
Section 55.1-1955 of the Virginia Condominium Act (“Act”) establishes a warranty for the construction of the individual units, as well as the condominium common elements. The statute provides that the declarant must warrant and guarantee each unit against structural defects and further provide that the units are fit for habitation and were constructed in a workmanlike manner. As to the common elements, the Act provides that the declarant shall warrant and guarantee all of the common elements against “structural defects.”
Requirement of Written Notice of Structural Defects
What is a “Structural Defect”?
The statute requires the developer to be given an opportunity to correct the alleged structural defects. A written notice must be sent to the declarant at least 6 months prior to filing a lawsuit and the notice acts to toll the statute of limitations for up to 6 months.
That Act defines “structural defects” as “those defects in components which reduce the stability or safety of the structure below accepted standards or restrict the normal
The first step for any condominium contemplating a structural warranty claim is to engage an engineer who can inspect the property and to identify all issues believed to be potential “structural defects” under the Act. This “Transition Study Report” becomes a staple document for the condominium in pursuit and negotiation of its claim against the developer, with the report identifying both design defects and defects in materials and construction.
