Summary

A single warranty date applies to each condominium building in a development.  Meaning that each unit does not have its own warranty date, and units in different buildings will likely have different warranty dates, unless they happen to be completed on the same date

The Facts

Village Lofts Condominium Association consisted of two buildings: A and B.  Building A was substantially completed in 2003 and Building B was substantially completed in November of 2004.  In 2014 the Association discovered various water leaks in Building A.  In June of 2015 they had also found similar leaks in Building B.  The Association repaired the leaks throughout both buildings.  In August 2015 the Association sued the developers and contractors for breach of warranty, breach of contract and negligence.  The defendants brought motions for summary judgment arguing that that the Association couldn’t bring a suit after 10 years based on the statute of repose (similar to a statute of limitations).
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Declarant/Developers of Community Associations love to reserve themselves rights within the Declaration that extend far beyond their Declarant control powers.  This is nothing new.  But when a Homeowners Association puts it foot down, who will end up on top?  It depends on how all the sections in the Declaration read together, and as this case shows, ambiguity does not favor the Declarant.

Facts

In a 2019 case, a court had to interpret the Declaration governing an HOA (subdivision) and determine who was right.  The Developer, after turning over control to the homeowners, sold the final lot to a buyer with a planned home that did not fit the specifications of the Declaration.
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Developers of condominium communities and HOAs often reserve access easement rights within the Declaration/Deed Restrictions for the subdivision, especially when the Developer owns yet-undeveloped neighboring property. But what happens if the Developer forgets to reserve such easement rights specifically within the Declaration or Deed Restrictions? A recent case explores this dilemma, and at least in this case, the HOA owners come out on top.

Facts

In a 2019 case, some lot owners within a subdivision, which had been advertised as a private, gated community, sued the Developer for trying to enforce an access easement he had for the main road within their subdivision. The Developer claimed he needed access to that main road in order to develop the neighboring lots behind the gated community.  The Developer also believed he could grant access to the owners of the neighboring lots through the gated community. 
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Even the best and most established real estate developers can face hard times, especially in the aftermath of recession and economic downturn, as we experienced a few short years ago. Many condominium and subdivision developments found themselves half completed, both in terms of units and homes built, and common area improvements (like streets and curbs) left undone.  Where a new developer comes in to build upon the remaining lots, what responsibilities does he take on?  As related in a recent 2019 case, the answer may be found in the original development agreements with the municipality.
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Problem & Facts

The association’s detention pond overflowed causing damages to property downhill from the pond. The developer built the detention pond in 2007. The owner of the downhill property (who bought in 2012) sued the association in 2013 for damages in excess of $300,000. (Kowalski v. TOA PA V, L.P. and Traditions of Amercia at Liberty Hills Condominium Association, Pa., May 22, 2019). The owner, through expert testimony, claimed $300,000 was the cost to install an appropriate storm water management system. The association filed a third party complaint against the developer.
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Becker Boards Summit, LLC v. Summit at Copper Square Condominium Association – 2018 WL 6695279 ( 2018 Ariz.)

Issues:  The court in this case addressed two important issues:

  1. Can a Developer, before turnover, amend a Declaration to convert Common Element to Limited Common Element for the benefit of a Developer Unit?
  2. Can Developer contracts entered into before turnover be voided after turnover?


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Yes, developers can be lazy, greedy good for nothing con-artists. Developers can also adversely affect the rights of an association by simply doing nothing.  Specifically, a developer (owner of the property and declarant of the association) with knowledge of construction defects can prevent the association and/or unit owners, after turnover, from potentially suing the contractor and/or engineer for construction defects.
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Picture this: an urban condominium complex and neighboring apartment building, built by the same developer, with one parking garage between the two. The condominium owners were led to believe that the garage belonged to them as a common element; however, just before turning over control to the unit owners, the developer/declarant secretly recorded an easement over 40 parking spaces for the benefit of his neighboring apartment building (essentially, giving an easement to himself). The developer sat tight for a few years, and then asserted his easement rights out of the blue. 
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