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Author Archives: Patricia McGlone

Bonds May Be Released But The Association’s Claims Are Not

Posted on Author By Patricia McGlone

The transition process involves an engineering evaluation of the Association’s common elements to determine if there are defects.  The engineer’s evaluation  typically identifies defects within the site improvements, for example, the landscaping, roadways, sidewalks, detention basins, etc.  These site improvements are often subject to performance bonds with the municipality.

New Jersey statute N.J.S.A. 40:55D-53 permits municipalities to require a developer to post a performance bond guaranteeing the construction of site improvements.  The amount of the performance bond is calculated by the municipal engineer and is intended to cover the cost of constructing the site improvements in the event that construction is not completed or completed improperly.  The developer is then required to post a cash bond, a surety bond payable to the municipality, or a combination of the two, in order to guarantee the construction of the required improvements.

As construction progresses, the municipal engineer will inspect each site improvement and issue a report stating whether it was constructed in accordance with the approved plans.  The municipality (typically a township council) will then decide whether to reduce or release the performance bond after taking the municipal engineer’s findings into consideration.  Each municipality enacts ordinances setting forth the requirements and procedures for the performance bond process.  Therefore the process may vary depending on the municipality where the construction site is located.

The Association’s transition engineering evaluation should be submitted to the Township Clerk and Township Engineer when received, because the Association wants to alert the municipality that construction defects have been identified in the site improvements before the developer’s performance bonds are released.  This way the Township Engineer will have the benefit of reviewing the Association’s engineering report, and the description of those defects, when deciding whether to recommend a reduction or release of the performance bond to the municipality.

Interestingly, in K Hovnanian at Lawrenceville, Inc. v. Lawrence Township Mayor and Council, 234 N.J. Super. 422 (Law Div. 1988) the court held that the Township Council could not refuse to release or reduce the performance bond where the Township  Engineer recommended doing so.  The court noted that homeowner complaints of defective soil and drainage conditions were not sufficient for the Township Council to deny the developer’s request for bond reduction.  However the court stated that the Township Council would have discretion to deny the request if confronted with competent evidence such as an engineering report.

What happens if an Association receives its transition engineering evaluation after the performance bond has already been released?

Some developers “refuse to consider” an Association’s construction defect claim for bonded improvements if the municipality already accepted the construction of the improvements and released the associated performance bonds.  Do not accept this disingenuous argument.  The Association may pursue claims against a developer, for the defective construction of bonded improvements, even if the items were subject of a performance bond and the municipality already accepted the construction and released the developer’s performance bonds for the improvements.

  1. First, submit the engineering report to the municipality anyway as there may be a maintenance bond in place.  Most municipalities require developers to post a two year maintenance bond once the performance bond is released.  The municipality may perform repairs or replace unacceptable improvements and charge the cost against the maintenance bond.
  2. Second, the Association may pursue claims against the developer for the defective site improvements because the Association is not a party to the performance bond agreement.  Instead, the bonding agreement is only an agreement between the municipality and the developer.  As a result, the Association is not bound by actions taken by the municipality or the developer, pursuant to the bonding agreement.
  3. Third, the municipal engineer’s report indicating that construction was completed in accordance with the plans is not binding on the Association.

The municipal engineer’s report recommending release of a performance is similar to the municipal construction official’s issuance of a certificate of occupancy.  In DKM Residential Properties Corp. v. Township of Montgomery, 182 N.J. 296 (2005) the New Jersey Supreme Court held that a municipal construction official had authority to issue notices of violation for failure to comply with the Uniform Construction Code to a developer for defective EFIS construction after the certificates of occupancy were issued by the municipality.  The court noted that the Code does not limit its enforcement after a certificate of occupancy has been issued.

By analogy, the municipality’s acceptance of a site improvement does not limit the Association’s right to pursue a claim against the developer for Code violations or other basis of construction defect.  The Association obtains its right to pursue construction defect claims against the developer by virtue of the contractual provisions of the Public Offering Statement, the contracts of sale between the developer and the various purchasers, and the Association’s other governing documents.  In addition to these contractual rights, the Association also has independent rights to pursue the developer, on behalf of the unit owners, for various tort based claims relating to the common elements. See Condominium Act, N.J.S.A. 46:8B-12, Siller v. Hartz Mountain Assocs., 93 N.J. 370, 380, cert. denied, 464 U.S. 961 (1983).

Practical advice:

  • It is often helpful to keep the lines of communication between the Association and the municipal engineer open because the Township can be a great asset by holding the developer’s “feet to the fire” and making sure the site improvements are constructed properly.
  • If the Association’s engineer identified construction defects after the bonds are released, the Association’s transition counsel should be armed and ready to dispute the developer’s contention that it is not responsible for site improvement defects once the municipality has accepted them and released the bonds.

Pending legislation of concern:

Finally, everyone should be aware of pending legislation that is attempting to limit the developer’s obligations for performance and maintenance guarantees under the Municipal Land Use Law (A1425).  The proposed legislation would only require a performance bond for those improvements that will be dedicated to the municipality after completion and a municipality would only be able to require a performance bonds for privately owned perimeter buffer landscaping. The proposed bill would remove the following improvements from the performance bond requirement: culverts, storm sewers, erosion control and landscaping.

This legislation, if adopted, would leave an Association with defective private roadways or storm sewers to fend for itself with regard to construction defects and removes the first layer of protection that was provided by the municipality and the performance bond.

The cost to remedy construction defects in these improvements can be substantial.  This proposed legislation does not benefit Associations.

Lessons From Storm Sandy

Posted on Author By Patricia McGlone

1. FEMA has again extended the deadline to file a proof of loss

If you want to contest the amount of payment from a flood insurance policy or you need to supplement a prior claim with additional information, the new deadline is April 28, 2014.

FEMA waived the proof of loss requirement to expedite the claims process for payment of Storm Sandy claims. This applies to Standard Flood Insurance Policies and losses related to Storm Sandy only. Insurance adjusters were permitted to issue payment based on the “evaluation of damages contained in the adjusters report” instead of a proof of loss signed by the insured or an insured-signed adjusters report.

FEMA has stated that if a policyholder wishes to submit a supplemental claim or disputes the amount paid, it may request additional payment by submitting a signed and sworn poof of loss statement as required by the terms of the insurance policy. Initially this paperwork had to be submitted by October 28, 2013. There was concern that additional damage may be discovered during the rebuilding process or there was not sufficient time to gather and submit all of the supporting documentation.

 

2. It may be time to revise the Association’s governing documents

This is a good opportunity for the Association to review its governing documents. Many Associations were surprised to learn that their documents did not contain a provision for destruction of the property and the procedure for deciding whether to rebuild. If rebuilding involves the common areas, the Association may want to provide that it will retain one contractor to do all of the work.

The sections regarding distribution of insurance proceeds should be reviewed to make sure they meet the needs and desires of the community. The Association should review and understand whether the Association’s policy includes coverage for the individual units. Will the restoration after a loss be full replacement, i.e., which would include upgrades that existed prior to the loss or will the unit be restored to builders grade only? The board may want to add a provision regarding payment of the insurance deductible in various situations.

 

3. Keep good records

Storm Sandy reminded us that good records lead to good claims. The insurance company requires documentation or proof to establish the damage or loss being claimed by the Association. Keep records with the date of purchase or installation, receipts or contracts for the work and photographs of the items. If these records are detailed and easily accessed a claim for payment for the insurance company will be proceeded faster and with a better result. The Association’s inventory should be updated annually as well.

Storm Sandy also reminded us that it is a good idea to keep a back up of all important records off site in the event that original records or computers are destroyed.

NJICLE’s 2019 Community Association Law Summit

Posted on Author By Patricia McGlone

Pat McGlone was invited to speak at NJICLE’s 2019 Community Association Law Summit, presented in cooperation with the New Jersey State Bar Association Real Property, Trust & Estate Law Section and the Community Associations Institute-New Jersey Chapter.  Pat presented an overview of insurance issues that community associations should be aware of, from the purchase of insurance through the final payment of a claim.

Patricia Hart McGlone – Handling of Property Damage Claims

Posted on Author By Patricia McGlone

Patricia Hart McGlone, Esq. spoke on the handling of property damage claims in a community association at an education session during the Community Association Institute Delaware Valley and Pennsylvania Chapter 2014 Annual Conference and Expo on April 24, 2014 held at Citizens Bank Park, Philadelphia.  Managers in attendance received continuing education credit.

Pat presented the legal perspective on property damage claims.  The other speakers were Jennifer Wojciechowski, JD, of Community Association Underwriters of America, to present the insurers perspective and Robert Strickland of Unlimited Restoration, to explain the restoration company’s role after a loss.