Construction Defect Lawyers     Making what's wrong...right
Serving Clients in Arizona and California
DCS represents homeowners and homeowner associations in Arizona and California. Each state has unique statutes governing construction defects and the litigation process. This section provides an overview of these processes and what our firm will do when representing your association in a construction defect claim.
Construction Defect Litigation - Arizona

Dicks, Coglianese & Shuquem will perform the following for your Association:

Pre-filing Process in Arizona:

After your community association hires our firm, we thoroughly investigate the suspected defects and evaluate the Association's legal position. The review usually includes the following steps:

  • Distributing a detailed questionnaire to all homeowners and analyzing their responses.
  • Inspecting documents filed by the developer with the Department of Real Estate.
  • Analyzing and summarizing a variety of association documents, including the CC&R's, meeting minutes, and repair records.
  • Reviewing with the association board of directors and manager the experts' preliminary findings regarding the defective conditions.

Before the lawsuit can be filed, the Association must first comply with the requirements of A.R.S. §33-2002. This statute generally requires the association to hold a meeting if its members, and disclose in writing prior to the meeting being conducted the following

  • a. How the action will be funded
  • b. All demands, notices and any offers to settle.

Litigation Process in Arizona:

A formal complaint will be filed inevitably after the pre-litigation notice meeting is conducted. However, A.R.S. §12-1361 to A.R.S. §12-1366, which became effective in July of 2002 and entitled the Purchaser Dwelling Act, is in addition to the pre-litigation notice meeting requirements.

The legislation generally requires the following:

Written Notice Requirements

  1. At least 90 days before filing a construction defect lawsuit, the homeowner, or association, must provide written notice to the Seller/Builder specifying in reasonable detail the basis of the lawsuit to be filed.


Notice and Opportunity: Inspection

  1. The Seller/Builder may request an inspection and perform testing in order to determine the nature and cause of the defects upon reasonable notice.
  2. The Association must make the property available for inspection within ten (10) days.

Notice and Opportunity: Repair Offers

  1. Within 60 days after being served, the Seller/Builder must send to the association a written response offering repairs or money. If repairs or replacements are offered, the response must include, in reasonable detail, repairs to be made, and an estimated date by which they will be completed.
  2. If the Seller/Builder fails to respond within 60 days, the lawsuit proceeds without waiting the full 90 days.
  3. Twenty (20) days after receiving the defendant's response, the association must send a written reply, and either accept or reject the Seller/Builders offer. If the association rejects the offer made by the Seller/Builder, the association must explain why and may make a counter-offer.
  4. The Seller/Builder has ten days after receiving the association's reply to make its "best and final offer."

Admissibility at Trial:

The following are admissible in any dwelling action:

  • a. A purchaser's failure to provide a good faith notice to seller.
  • b. A purchaser's failure to allow a reasonable inspection requested by a Seller.
  • c. A purchaser's failure to provide a good faith, written response to Seller's offer.
  • d. A Seller's failure to respond in good faith to the purchaser's notice.
  • The following are not admissible in any dwelling action:
  • a. A purchaser's good faith notice given to the seller.
  • b. A seller's good faith response or offer made.
  • c. A purchaser's good faith response made to a seller's offer.
  • d. A purchaser's good faith counteroffer to a seller's offer made.
  • e. A seller's good faith best and final offer made.

Amendments to Defect List:

  1. The association may amend its original defect list with new defects identified in good faith after submission of the original list.
  2. The Seller/Builder can then conduct an additional inspection of the new defects and make a settlement offer.

Fees and Costs:

  1. The successful party shall be entitled to recover their reasonable attorneys' fees, expert fees and costs.
  2. The successful party is determined by the amount awarded v. the best offer made by the Seller/Builder.
The Law Does Not Apply to the Following:

  1. If a contract for the sale of a dwelling or an association's community documents contain commercially reasonable alternative dispute resolution procedures set forth in the contract in bold and capital letters.
  2. To personal injury claims.
  3. To death claims.
  4. To claims for damage to property other than a dwelling.
  5. To common law fraud claims.
  6. To proceedings brought pursuant to Title 32, Chapter 10 relating to contractors.
  7. To claims solely seeking recovery of monies expended for repairs to alleged defects that have been repaired by the association.

The following is an example of the procedural timeline for the litigation process:

  • 60 days - Answer by Developer and filing of cross-complaint against subcontractors;
  • 35 days after Case Management Order or first appearance;
  • All parties to answer interrogatories and deposit non-privileged documents;
  • Response to insurance statement due;
  • Response to statement of work due;
  • 90 days - Preliminary defect list due;
  • 120 days - Last day to add new parties;
  • 150 days - Joint interior site inspections;
  • 5 months - Joint intrusive testing;
  • 9 months - Final list of defects due by Plaintiff;
  • 10 months - Plaintiff's cost of repair due;
  • 11 months - Settlement demands due from developer to subcontractors;
  • 12 months - Commencement of mediations;
  • 13 months - Percipient depositions;
  • 15 months - Expert Depositions;
  • 16 months - Settlement conference;
  • and18 months - Trial.

Communication With Homeowners and Board of Directors

Homeowner Meetings - Dicks, Coglianese & Shuquem will attend every homeowner meeting upon request and annual homeowners association meetings to advise and update the membership and provide continuity for any new board members.

Defect Dateline Communications to Homeowners - Dicks, Coglianese & Shuquem will update the membership in writing either on a monthly or bi-monthly basis outlining the progress of the Association's claim.

In addition, Dicks, Coglianese & Shuquem will:

  • Respond to individual homeowner calls about the case and about repair problems.
  • Prepare and mail status letters to the homeowners.
  • Answer questions from realtors, potential buyers and financial institutions.

See sample Construction Defect Dateline Newsletter 

Construction Defect Litigation - California
Dicks, Coglianese & Shuquem will perform the following for your Association:

PRE-FILING PROCESS IN CALIFORNIA:

After your community association hires our firm, we thoroughly investigate the suspected defects and evaluate the Association's legal position. The review usually includes the following steps:

  • Distributing a detailed questionnaire to all homeowners and analyzing their responses.
  • Inspecting documents filed by the developer with the Department of Real Estate.
  • Analyzing and summarizing a variety of association documents, including the CC&R's, meeting minutes, and repair records.
  • Attending on-site investigations with the association manager and qualified experts such as an architect and engineer.
  • Reviewing with the association board of directors and manager the experts' preliminary findings regarding the defective conditions.
  • Calderon Notice - Dicks, Coglianese & Shuquem will prepare and serve the CC§1375 Calderon Notice and provide you with a detailed summary of that process.
  • Generally the Calderon process includes negotiations with the developer, schedules of site inspections, testing, mediation, and another pertinent information.
See CC§1375 Calderon Process Timeline

Litigation Process in California:

Filing of the Complaint - Dicks, Coglianese & Shuquem will file a formal complaint (if matter is unresolved in typical 180 day CC§1375 process) and continue to prosecute the CLAIM.

The following will occur after the complaint is filed:

  • 60 days - Answer by Developer and filing of cross-complaint against subcontractors;
  • 35 days after Case Management Order or first appearance;
  • All parties to answer interrogatories and deposit non-privileged documents;
  • Response to insurance statement due;
  • Response to statement of work due;
  • 90 days - Preliminary defect list due;
  • 120 days - Last day to add new parties;
  • 150 days - Joint interior site inspections;
  • 5 months - Joint intrusive testing;
  • 9 months - Final list of defects due by plaintiff;
  • 10 months - Plaintiff's cost of repair due;
  • 11 months Settlement demands due from developer to subcontractors;
  • 12 months - Commencement of mediations;
  • 13 months - Percipient depositions;
  • 15 months - Expert Depositions;
  • 16 months - Settlement conference with the court;
  • 18 months - Trial.
See sample Case Management Order

COMMUNICATION WITH HOMEOWNERS AND BOARD OF DIRECTORS

Homeowner Meetings - Dicks, Coglianese & Shuquem will attend every homeowner meeting upon request and annual homeowners association meetings to advise and update the membership and provide continuity for any new board members.

Defect Dateline Communications to Homeowners - Dicks, Coglianese & Shuquem will update the membership in writing either on a monthly or bi-monthly basis outlining the progress of the Association's claim.

In addition, Dicks, Coglianese & Shuquem will:

Respond to individual homeowner calls about the case and about repair problems.
Prepare and mail status letters to the homeowners.
Answer questions from realtors, potential buyers and financial institutions.
See sample Construction Defect Dateline Newsletter

What Our Clients Say
"We are especially pleased"
We are especially pleased with the extent of your ability in protecting your client's rights and the expeditious decision of our case.

- Danny Kim, et al – Virgil Courts HOA, Inc.

Verdicts & Settlements
"Piedras Homeowners Association, Sedona, AZ $3,500,000.00"
Developer: Cachet-Sedona, LLC
100 Unit Condominium Project
The homes in this community experienced roof, stucco, deck, and structural issues.
Settlement/Judgment - $3,500,000.00
Duration - 11 months