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Preparing the Construction Defect Case for Trial

By Scott A. Burdman, Esq.

Your construction defect claims have been investigated, destructively tested, analyzed, and quantified. During that process, experts in forensic architecture, structural engineering, plumbing, mold, soils, electrical, and perhaps other construction components have determined that dozens, perhaps scores, of other defects also exist at the development or in the homes. A cost estimator was retained, and has determined the cost to repair all of the defective conditions. The die is cast with the filing of a complaint - the association or homeowners are "plaintiff," and the developer, general contractor, and subcontractors are "defendants." Either the case settles now, or the parties have to begin to prepare for trial.

Mold - Separating Fact From Hype - Legal Issues

By Scott A. Burdman, Esq.

This article is written to address the perspective of community managers and homeowners and discusses practical and legal considerations regarding potential mold contamination.


For purposes of this article, mold contamination will be broken down into three categories for discussion. First, the practical and prudent considerations faced when discovering mold for the first time in residential construction; second, the ramifications of mold contamination from a property damage perspective or as a "construction defect;" and third, considerations regarding mold contamination as a health hazard and/or a personal injury claim.

Chinese Drywall

By Pieter O'Leary, Esq.

It is estimated that between 2003 and 2008 nearly 100,000 homes in the United States were constructed using toxic Chinese drywall.   According to some insurance estimates, replacing the drywall and repairing the resulting damages could eventually cost over $20 billion.   The cost to replace drywall and repair damage to the plumbing and electrical systems in individual homes, let alone the potential health risks, is enough for individual homeowners to abandon their property with no way of recovering the loss.  Consequently, if you suspect Chinese drywall was installed in your home, condominium, or commercial property, contact the attorneys at Burdman & Ward for a free consultation.

Sound & Sense: Acoustics in Construction Defect Law

By Scott A. Burdman, Esq.

Acoustical problems often infuriate condo owners and make a manager's life miserable. If a particular property is plagued with noise complaints, there may be a serious underlying problem. Sometimes sound is transferred between units that shouldn't be. If sound at a normal decibel level is invading a neighboring unit, there may be a construction problem. 

Five Questions Answered About Expansive Soils

By Scott A. Burdman, Esq.

Expansive soil causes more damage annually than earthquakes, hurricanes, and floods combined. Avoid serious impact on your home by learning the answers to these five questions.

1. What Is Expansive Soil?
Nearly all clay soils swell when they get wet and shrink when they get dry. Clay soil that swells to extremes is called “expansive soil.” The swelling can occur over a long period of time—weeks, months or even years. Therefore, even if the source of wetting is removed, heaving can occur for a long time afterwards.

Preparing the Annual Budget

By Scott A. Burdman, Esq.

Plan Ahead
Preparing the annual budget is extremely time sensitive. Managers wonder how this can be done when they have so many other assignments that are also time sensitive. The secret is to plan ahead. It is never too early to get the reserve study completed. Get that done and out of the way first! Once your reserves are in order, you can build your budget from there. Reserves are your long-term business plan, so work with your board of directors at each meeting to help you create the outline or "picture" of progress that they would like to achieve the following year.

Keys to the City, Part One

By Scott A. Burdman, Esq.

Problems and Solutions When Dealing with the Developer During Transition


This is the first of a two part series discussing important issues that arise during the transfer of control from the developer to the homeowners of a recently constructed common interest development. The first part focuses on some of the problems that can arise before, during and subsequent to working with the developer during this transition period.

Fiduciary Responsibilities of Board Members

By Scott A. Burdman, Esq.

How to Avoid Liability


Primary Responsibility of Board Member:  Maintain and repair the common areas within your development while making a variety of decisions that affect the living conditions in your community.


Fiduciary Responsibility of Board Member: Act in the best interests of the association and use the care that an ordinary prudent person would use given the same circumstances.

The Pinnacle Decision

By Pieter O'Leary, Esq.

In a stunning decision by the California Supreme Court, homeowners associations must now take their construction defect claims to an arbitrator rather than the Superior Court when the Covenants, Conditions, and Restrictions (“CC&Rs”) contain a valid arbitration clause.  The case seeks to clarify some long-standing disputes between developers and homeowners over whether a homeowners association is subject to an arbitration provision contained in the governing documents.   Although the way the Supreme Court arrived at its decision has stirred some controversy, the result is that California courts will apparently see far less construction defect litigation as the parties turn to the arbitration provisions contained in the governing documents.

Checklist for Transition from Developer Control

By Scott A. Burdman, Esq.

Below is a list of the most important items to request from the Developer in the few months prior to the transition from Developer to Homeowner control of a Board of Directors. If you have all of these items, it will make operating and maintaining the Association a much easier task.

Does My Home Have Chinese Drywall?

By Pieter O'Leary, Esq.

A Preliminary Exam to Determine If Your Home was Built with Toxic Chinese Drywall


Step One: Was your home, condominium, or office constructed or remodeled between 2001 and 2008?

Step Two: Does your home, condominium, or office have a persistent rotten egg, ammonia, or acidic smell?

We Settled! Now Who Has to Know?

By Scott A. Burdman, Esq.

Disclosure of Settlement

California Civil Code §6100 provides that an association has a duty to let the members of the association know about any settlement reached between the association and the builder or developer in a lawsuit regarding defects in the common areas or in areas that the association is obligated to maintain.

The Stearman Decision

By Scott A. Burdman, Esq.

Decision Allows Plaintiffs to Recover Expert Costs and Holds Builder Strictly Liable for Property Damage


In the January 31, 2000 decision of Stearman v. Centex Homes, the Fourth Appellate District Court held that a builder is strictly liable for damage to physical property, including damage to the defective product itself. Additionally, the Court plainly states that expert fees and costs are recoverable in a construction defect claim. The decision is a victory to homeowners and has since been incorporated into the Builder’s Right to Repair law (California Civil Code § 944).

Is Your Association Suffering from Insecurity?

By Scott A. Burdman, Esq.

A homeowner association's relationship with its members has often been likened to that of a landlord's with its tenant. This is so because an association and a landlord perform many similar business functions such as maintenance and repair of common areas and enforcement of rules and regulations for the community. Landlords and associations also have another critical and often ignored concern in common, namely that of providing security to its members.

Implied Warranty Claims

By Scott A. Burdman, Esq.

HOAs Now ‘Privy’ to Common Area Implied Warranty Claims


We’re all familiar with the express warranties given by vendors and manufacturers on their products, especially when your car breaks down the day after your 5-year/60,000 mile power train warranty expires (who hasn’t that happened to?).

The Role of Forensic Experts in Complex Litigation Claims

By Scott A. Burdman, Esq.

Whether in a lawsuit or in negotiations with a builder regarding construction defects issues, you need an expert.  Experts are necessary to investigate, analyze and quantify the legal claim.  These experts are forensic in nature, meaning that they analyze the existing construction, and in particular, trace damage to the root cause, which is typically a construction defect.  Experts bridge the gap between the construction damage and the legal cause.  This is a critical link in establishing the homeowners’ right to repair or recovery.

Managing the Reconstruction Process

By Scott A. Burdman, Esq.

This is the final part of a three-part series providing an overview of the steps necessary for a successful reconstruction project. This final segment focuses on managing the reconstruction project.


Now that your association has chosen a contractor, and the reconstruction work is about to begin, you will play a key role as community manager to ensure the reconstruction project runs smoothly.

Selecting the Contractor

By Scott A. Burdman, Esq.

This is part one of a three-part series providing an overview of the steps necessary for a successful reconstruction project. The first segment focuses on selection of a contractor. One of your homeowners associations has recently collected a substantial settlement in a construction defect lawsuit, and the board is now ready to have major reconstruction work done. Or perhaps one of your older associations is ready to spend some of its reserves to perform some long-needed renovations.

Negotiating the Reconstruction Contract

By Scott A. Burdman, Esq.

This is part two of a three-part series providing an overview of the steps necessary for a successful reconstruction project. This second segment focuses on negotiating the reconstruction contract.

Ticking Time Bombs: Construction Defect Statutes of Limitations

By Scott A. Burdman, Esq.

From community managers to landscape contractors, everyone seems aware of the importance of California’s ten-year statute of limitations when it comes to evaluating the possibility of pursuing a lawsuit for construction defect claims.The statutes of limitations act as an absolute bar to construction defect claims. If a lawsuit has been filed ten years after the substantial completion of an improvement or development, then a dismissal of the lawsuit will result. However, due to other statutes of limitations that apply to construction defect claims, the ten-year statute is not the only law that should be relied upon. Other statutes of limitations are three and four years long.[1] Depending on the facts and circumstances of each case, these statutes can seriously impede or altogether prevent recovery for construction defect damages. The clock on these statutes can be stopped or "tolled" in certain circumstances. The following is a discussion of each statute and its application.[1] The standards for original construction set forth in California Civil Code §896 may also have application.  Consult your attorney for further information.

How Did My Home Pass Inspection?

By Scott A. Burdman, Esq.

It’s a little after seven o’clock in the evening as community managers, board members, and homeowners squeeze into a crowded conference room.  They’ve all come to hear a panel of experts address a growing issue affecting all of us – construction defects.  One of the homeowners asks, “How do I have construction deficiencies when my home passed the county inspection?” and another, “Who is responsible?”  As attorneys with over 30 years of experience handling construction defect matters, we often hear these same two questions.

Keys to the City, Part Two

By Scott A. Burdman, Esq.

Amending Condominium Documents After Transition


This is the second of a two part series discussing important issues that arise during the transfer of control from the developer to the homeowners of a recently constructed common interest development.  Part one focused on common problems and solutions involving this transition period.  Part two focuses on how governing documents can be amended or modified to allow for a smoother transfer of control from developer to the new owners of a common interest development.

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