Construction Defect Disclosure Law Effective August 8, 2017

The Colorado Common Interest Ownership Act’s newest addition became effective August 8, 2017.  Colorado Revised Statute 38-33.3-303.5 (formerly HB 17-1279) was signed into law on May 23, 2017 and became effective this week.

The law requires homeowner association executive boards to satisfy new disclosure, meeting, and voting requirements before commencing an action against construction professionals under Colorado’s Construction Defect Action Reform Act (C.R.S. 13-20-803, et seq.).

Before beginning a construction defect action (defined broadly as any civil action or arbitration proceeding for damages….against a construction professional..for damages or loss to…real or personal property or personal injury caused by a defect in the design or construction of an improvement to real property…”), the executive board of a common interest ownership community must “mail or deliver written notice” to each owner AND to each construction professional against whom the action is proposed.  The construction professional must also be provided separate notice advising of the owner’s meeting.

The notice must contain a description of the  nature of the construction defect action, which identifies the alleged defects with reasonable specificity, the relief sought, a good-faith estimate of the benefits and risks involved, and any other pertinent information, including

Presumably, the notice of owner’s meeting would give the construction professional time to prepare a presentation, propose repair, or offer a monetary settlement to be made at the meeting.

Vague laundry lists of defects have been the norm in construction defect notices of claim and lists of defect.  While the new law could result in early notice and more full disclosure, there is no mechanism allowing the construction professional an inspection or to obtain greater detail and the new law lacks a strong enforcement mechanism.

The advisory notices need not be sent to any construction professionals identified after the first advisory notice is mailed, so construction professionals with discreet scopes of work may be left out in early stages.

As a practical matter, the new laws timing requirements may not provide construction professionals sufficient time to truly prepare a response to the allegations, much less rally the support of its insurance carrier and legal counsel before the owner’s meeting.  While there are benefits to open dialogue, construction professionals should participate in any owner meetings with caution: the association will clearly have retained counsel and has litigation on its mind; statements and presentations could be used as later evidence in a lawsuit; and early participation without the approval or involvement of your insurance carrier may also have coverage implications.

 

Five Years Out: advice to my past self from my current self

Over the last month or so, I have seen numerous pictures and heartfelt posts from recent graduates flooding the social media channels. It made me think back fondly of when I graduated from architecture school five years ago and even, as shocking as it may seem, made me think fondly of being in architecture school (I guess it’s true: time does heal all wounds).

This past week has proven more taxing than most as I was reminded that I still have a long ways to go in figuring out the whole “being an architect” thing and what that entails. It brought me back to my post-graduation days of thinking that I had a firm grasp on what I was supposed to be doing and how much I actually knew about architecture. This has led me here: to the ever cliché format of “what advice would I give my younger self?” So, without further ado: here are a handful of tidbits that “five years out of architecture school and recently licensed Drew” would give “just graduated and trying to figure it out Drew”.

  • It’s okay to not be working on your dream projects. Architecture school is, more or less, built around the idea of teaching us to THINK like architects, while professional practice is where we figure out all the other aspects that make up actually being an architect. It’s hard to go from dreaming up grandiose projects in school with no client and no budget and then move into the realm of construction budgets and numerous outside sources trying to influence the project with their own priorities in mind. It takes time to wrap your head around even the simplest building projects. Be patient and try to absorb the lessons that will come at you daily.
  • You won’t know how to do everything that people ask you to do. That’s okay. People are (usually) willing to help you out because they remember how it felt to be in your situation and they would rather spend the time showing you the right way to do things than have to tell you to fix them later. I spent a lot of time afraid to ask questions because I didn’t want to bother people because everyone seemed so busy. However, once I decided to take the initiative and speak up, the amount of things that I learned on a daily basis skyrocketed (and continues to grow every day).
  • Don’t be afraid to walk away from thing that are not the right fit for you. We often find ourselves in circumstances, be it jobs, workplaces, project teams, or just life situations, where we know that it’s not going to work out. If you are able to walk away from these things and better your circumstances and your own mental health, do it. Change can be frightening, but it’s even more frightening to think back on times that you wasted in situations that made you unhappy.
  • Get licensed ASAP. Seriously. You probably have as few responsibilities right now as you will ever have. Find a method of studying that works for you and stick to it. Find a person or group of people that you can lean on for support and pick their brains as much as you can. Don’t waste time thinking about getting licensed. Just go for it and don’t stop until you get to the end.
  • It will take time before people to take you seriously. It won’t matter how much prior knowledge you have on a subject, people will see that you are recently out of school and immediately assume that you know less than you do and treat you as such. It will be frustrating and at times cause you great angst, but do your best to let it roll off your back. It takes time to build up a working relationship with your project teams and clients before they trust you, so just give it time and try to take things in stride.
    • Side note: I am a white male, so if it’s this way for me, there are many others that will experience this same thing ten times over and, potentially, for much longer.

These points probably seem obvious to many if not most. However, that doesn’t make them less true. I wish someone had sat me down five years ago and vehemently made these points. On top of that, these are all things that I continually have to remind myself of even today. The learning curve is ever bending and all we can do is to try to keep things in perspective and continually grow with it.

Hopefully I won’t be writing the same thing in five more years about my current self. If so, with any luck we will have time machines by then.

Out for Summer

capitol_vd_bobashThe First Regular Session of the Seventy-first General Assembly is Out for Summer having adjourned May 10, 2017, so it seemed an appropriate time to recap Construction Defect Reform across the State.

This session again saw an ambitious batch of Construction Defect reform bills – six in in fact. Both the Speaker of the House and President of the Senate highlighted reform in their opening speeches.  The bills ranged from defining “construction defect” to early allocation of costs among defendant litigants.

However, the only bill to garner enough support to make it to the Governor’s desk was HB 17-1279.  The bill requires that, before the executive board of a unit owners’ association (HOA) in a common interest community brings suit against a developer or builder on behalf of unit owners, the board must: Notify all unit owners and the developer or builder against whom the lawsuit is being considered; Call a meeting at which the executive board and the developer or builder will have an opportunity to present relevant facts and arguments; and Obtain the approval of a majority of the unit owners after giving them detailed disclosures about the lawsuit and its potential costs and benefits.

The hope is that it will reduce the risk of construction defect litigation just enough for insurance companies to lower their rates, allowing builders to re-enter the owner-occupied multi-family housing market in Colorado.

It will likely take a few years for insurance carriers to respond to HB 17-1279 with rate reductions, and another few years for builders and developers to feel confident that HB 17-1279 offers any true protection from overzealous litigants, but apparently, hope springs eternal among the General Assembly.

The Colorado Supreme Court’s recent ruling in Vallagio at Inverness Residential Condo Association vs. Metropolitan Homes Inc. will probably have more impact; reinforcing the power of a Declarant to bind future HOA members to arbitration of construction defect disputes.

In early June, the Court ruled that a homeowners association was wrong to sue a builder after disregarding bylaws that require binding arbitration to settle claims of construction defects.  The association’s key misstep, the court said in a 5-2 ruling, involved its bid to change the rules to allow litigation without getting the consent of the development’s builder.

“Because the unit owners did not obtain the Declarant’s written consent to remove the declaration’s arbitration provision, the attempted amendment was ineffective. Consequently, the Association remains bound by the arbitration agreement …”

Cities also continue to effectuate change on the local level.  Those that currently have Construction Defect ordinances include:

Arvada, Aurora, Castle Rock, Centennial, Colorado Springs, Commerce City, Denver, Durango, Fort Colins, Lakewood, Littleton, Lone Tree, Loveland, Parker, Westminster, and Wheat Ridge.

These ordinances include a combination of Notice-Repair language (pre-suit notice to construction professionals with a right to repair); Disclosure-Voting requirements (pre-suit disclosure to HOA members and lawsuit approval); Substantive Law changes (limitation of type or scope of a construction defect claim); or Plat Note language (allowing developers to record plat notes mandating arbitration).

As we enter the 2017 summer construction season, once again very little has changed from years past despite reform efforts at the General Assembly.  The General Assembly will convene once again in January 2018, and we will continue watching the circus for any true reform.

Special Thanks to @AxiomPolitics for working tirelessly and keeping the Colorado Defense Lawyer Association up to date on all legislative matters.

 

Filling the Gap

This week’s post is from our newest EP Blog contributor: Rachael Johnson. Rachel recently moved to Denver from Washington D.C. and brought with her an amazing program called the Christopher Kelley Leadership Development Program (CKLDP). 2016_ckldp_grad_slideshow

Filling the Gap by Rachael Johnson

As one of the few official “professions” – those jobs that require continuous improvement, evolution, innovation and training – lawyers and doctors have us architects beat when it comes to post-graduate school professional training and development. We emerge from a rigorous, often heavily theoretical education and begin our new professional lives as bathroom elevation trainees – interns. We learn and test our skills and knowledge until – BAM! – We’ve passed our tests and now have the credentials to do some real good (or damage – depending on how much we have actually learned and experienced). Aside from informal learning opportunities at an occasional lunch’n’learn with a vendor and those lucky chances to shadow a mentor, there is little regular and formal professional education built into an emerging professional’s early career.

Over the years, the professional architecture community here in Colorado has recognized this lack of guidance for interns and responded with various committees and programs including mentorship programs and testing support. There is still a gap, though. For freshly licensed folks who have collected mentors over the years and have exhausted many of the professional learning opportunities out there, there is still a gaping hole, an education void impeding the path to expertise, leadership and partnership. The knowledge needed to run a firm competently or reach a peak level in the profession is seemingly absorbed through osmosis (or perhaps through many iterations and subsequent failures and successes). I do not discount the hard work and raw talent that got our industry leaders where they are today, but I also recognize (and venture to guess that the architecture community at large agrees) that there is new talent out there that could not only enhance, but lead the next era of the practice of architecture. Let this serve as a call to action – We must empower and equip those eager to innovate and lead!

Enter stage right… the Christopher Kelley Leadership Development Program. This 9-month program serves as an opportunity for those bright, young professionals to think, dream and grow with like-minded young architects and leaders in the local community both within and outside the profession. Just by its inherent qualities and syllabus structure, the program has proven (over four years in Washington DC and now one in Denver) to be not only a plentiful environment for learning and exploring, but an incubator for daring, curious, diligent leaders. Each May, the local architecture and design community has the privilege of welcoming 16 empowered, fresh and enthusiastic candidates into the highly-qualified pool of leader candidates – the future of our profession.

Send us your best and brightest: scholars, speakers and collaborators!

*For more information – to sponsor, apply, contact – please visit: https://aiacolorado.org/ckldp

Automobile Speech (‘Car Talk’ is already a thing, I guess)

Over the past few years, I have had the opportunity to work in a variety of roles within an architecture office. Recently, I have been leading the CA effort on one project, while leading the design of another. Working on these two wildly different projects has opened my eyes to an idea that is never taught in architecture school, never comes up on the ARE, and has no hours to be logged via AXP: how do you work with and manage a wide variety of people throughout a project?

A few months ago I had a much more experienced architect in my office lament to me about not being able to motivate some of the younger staff (of which I am one, but that fact seems to have gone unnoticed). This got me thinking about ways that humans are motivated, both in a professional and personal manner. I realized (unfortunately after the conversation took place) that everyone is motivated through different stimuli and that the best way to motivate and work with people is to observe what works for those people and adjust your own style to work with them instead of hoping that they eventually come around to your way of thinking and working .

As people who know me will attest, I am a big fan of using unlike stories to illustrate a point. That being said, here it goes: working with and managing people is like moving a car without a key. Sometimes the car is broken down and needs a good push so that it can fall into gear. Once it’s in gear, it will run just fine like nothing ever happened to it. On the other hand, sometimes the car is already rolling downhill and your job is to absorb its momentum and navigate it in the correct direction. If you try to force your will upon the car that moving car, it will run you over and then end up in a ditch.

That seemingly obscure analogy lends itself to each project in the following ways: on one project, it took some real effort to motivate many team members, both internally and externally, to care about the project. Once people became invested in the project and felt ownership over it, though, everyone gained momentum and they no longer required as much pushing in order to move the project forward. On the other hand, the polar opposite was experienced on a different project. I came into the process about halfway through schematic design and the team was already wholly invested in the design and nuances of the project. At first, I came in with the same mentality that I had had to “push people in the direction that I wished them to go”. However, when the team already had momentum, it became twice as difficult to move things to where I thought they should be. Instead, I took a step back and used the momentum that was already in place and gently shifted decisions and ideas one way or another. While neither method is perfect and both require effort, I am sure that I avoided many headaches by tailoring my approach for each project.

Ultimately, what I have learned is that the best way to motivate and lead a project team is to adapt my approach to each team and even each team member to what they require. There can’t be a “one size fits all” approach because people are about as varied a species as there is. We can shift and customize our approaches within a spectrum, but it is important to recognize that people and situations will always vary and we need to be flexible enough to adjust accordingly. It’s just too bad I couldn’t think of all this when the question was originally posed months ago.