Keys to Selecting a Great Expert in Construction Defect Cases

Video Transcript:

Alan Tannenbaum, Esq.:
So welcome everybody. Send your questions through the chat function, stay on mute during the program and any questions we don't get to, we'll try to get to afterwards. So again, thanks for joining us. The program today is about forensic engineering. The value of it, why it exists, how it is here to support community associations, our firm, Tannenbaum, Lemole & Kleinberg. We stay within the construction realm in our practice, primarily serving community association. So we are involved in pursuing construction defect claims for buildings that are 10 years or younger or improvements that are 10 years or younger. We also do repair consulting for 30, 40 year old buildings that are in need of major repair projects. We help do the legal side of administering and those contracts.

We got somebody who's not on mute. If you can do that, mute yourself, please. Thank you. Okay. So that's what our practice is, we do it from the Space Coast across to Tampa Bay and down to Naples. But both on the defect side and on the repair side, we would be powerless unless we had some great forensic engineers supporting both our cases and also our repair projects. We're not licensed to design a repair project, we're not able to act as our own experts in our construction cases.

So we rely on a group of excellent forensic engineers. And we have one today that I'm going to be interviewing Rene' Portieles of Epic Forensic and Engineering. Their firm is a multidisciplinary engineering firm. Every aspect of your building or your improvements are covered by specialists within their engineering firm. They support defect cases around the state. They also assist in repair projects and we thought it would really be interesting to interview Rene' so that you fully understand how our forensic engineer works and what purposes they serve. So Rene' welcome. Answer my first question. My first question is, what role does your firm serve for condo and homeowner association in Florida?

Rene' Portieles P.E., G.C.:
Thanks, Alan. Great to be here. That's a great question to start off with. The engineers are your technical advocate, so we consult and we can guide you through in resolving all your building site issues. So in short, think of it this way. We're that doctor friend that you ask when you have questions to resolve all your concerns. The key here is to give a clear insight and direction on topics that you may not have a full grasp of. And that's what really what we're here for.

Alan Tannenbaum, Esq.:
Give an example, Rene'.

Rene' Portieles P.E., G.C.:
So for example, if there's a lot of issues that are happening within your space, and I will show you clear examples of these, I actually brought a lot of great photos with me today that I'm going to share with you, but you keep having water intrusion coming in and you have no idea why it's there. It's inside the wall. It's causing damage to the interior building. You've sent contractors, they fix the windows, they fix the stucco, but what it is, it's a flashing in a roof somewhere, which happens to run in a certain direction and then lands on a window inside the wall.

And you think it's the window, but it really isn't. So that's where you can ask us, "Hey, Rene', we're going crazy trying to figure out where this water is coming in from." We can help you understand where the water is and then get all that engineering jumbo out of the way and get down to the real repair.

Alan Tannenbaum, Esq.:
Now, your firm, there's some engineering firms that the head of the firm as a mechanical engineer, they're really good if a building has a mechanical problem of investigating that issue. Some of our HOAs were represented here today. They really don't have building concerns, but they are responsible for maintaining retention ponds, roadways, and so forth. Some groups that are represented today are high rises. Some are mid rises. Does your firm undertake investigation of all those different types of properties and how do you do that within the disciplines of your firm?

Rene' Portieles P.E., G.C.:
Well, we have different divisions with separate individual experts. And so what does this mean? This means that normally there's a Jack of all trades guy and that's the guy that you call that knows every single discipline in your entire building: structural, mechanical, electrical. However, that's only one person that has knowledge of all building disciplines. We feel that the key is not only to know all disciplines, but to really get hyper focused on the individual disciplines. This creates experts who are intended to resolve specific issues in their field. Look, this is not a new concept. You know that there's a doctor out there, that's your general doctor. And he knows just about everything about you. However, if there is a issue, what does he do? He sends you to a specialist. That shows how organized the engineer needs to be in order to not only know the global, which is everything about your site, but also have individual key personnel that can really get down into the details.

Alan Tannenbaum, Esq.:
So let me give an example. If one of the folks on the panel today as a manager of an HOA, single family, so the HOA is not involved in the single family home issues, but they're concerned about their paving and their retention ponds. Is that something that you personally would investigate or some somebody else in your firm take it on?

Rene' Portieles P.E., G.C.:
Well, we can investigate. It depends on really how in depth the issue is. We have specific disciplines that we go out there to assign to that project.

So what'll happen is you have one project manager that knows just about everything. And that's that Jack of all trades that we were talking about. And then once we find a specific issue that really needs a little bit more investigation, then we'll go ahead and assign or bring in an expert from our firm to really get down into the details and understand not just what's going on, but more importantly, how to fix it.

Alan Tannenbaum, Esq.:
All right. So you have site engineers, people who during their careers have really focused on site issues more than building issues. And for an in depth problem would be the one that you will bring in for that part of the investigation.

Rene' Portieles P.E., G.C.:
Absolutely. Correct.

Alan Tannenbaum, Esq.:
Okay. And your personal bias. I mean, where's your greatest strength as an engineer relative to building forensics? You personally.

Rene' Portieles P.E., G.C.:
Well, I started off doing structural assessments of stucco and concrete and post-tensioning, and since there's so much water intrusion that we find here in Florida, I gravitated over to windows and doors, and now I act as one of the primary glass and glazing experts for the firm. However, I am pretty dangerous in mechanical, electrical and plumbing also.

Alan Tannenbaum, Esq.:
All right. Let's talk about what purpose of forensic engineer serves in a construction defect case.

Rene' Portieles P.E., G.C.:
Perfect.

Alan Tannenbaum, Esq.:
Why are you important for a defect case?

Rene' Portieles P.E., G.C.:
So you have your engineers and you have forensics engineers. Okay, so what distinguishes both of them? Well, the forensic engineer has to effectively present the case, which he has to substantiate the defect found, he has to understand and find and know the actual causation that the issue has. And the proper remediation. But you say, "Well, an engineer could do that." Well, the forensic engineer has to be able to present that to a wide audience. He has to present it in a way that everybody can understand it. Why? Because in a mediation and a deposition in trial, who's in front of you? Well, you have engineers that you need to have the technical know-how.

You have the attorney, which knows the process and may or may not know the technical of the engineering. And then you also have common people, you have dentists, you have doctors. I mean, these are great individuals that are masters in their field, but are not masters in this structural engineering realm. So that's why it's really important to get a forensic engineer that can get a super complex issue and be able to make it so that everybody can understand it, and everybody can then know why the issue is happening and how to fix it.

Alan Tannenbaum, Esq.:
The other thing from a trial lawyer's perspective, there are a lot of competent engineers who can do an investigation, but we want somebody in an 11-hour deposition with a room full of defense lawyers, interrogating them who can hold up well under that type of process. And frankly, there are a lot of engineers out there who are very comfortable doing an investigation and doing a report, but the litigation process, the level of intensity of defense lawyers coming at them. For most engineers is a very unpotable circumstance. And they don't do well under that type of pressure and a good forensic engineer besides having the capability, knowing how to investigate, knowing what the standards are.

I can't say any of them enjoy being in deposition for 10 hours, because it's a grueling experience, but the good ones are able to endure that type of issues. So before we get into your photographs, because I know that people are desiring to see them and we'll get there, but let's talk about approach. How do you approach an investigation? Let's say a building investigation and where does invasive or destructive testing fit in?

Rene' Portieles P.E., G.C.:
Right. We're all about to take everybody here back to high school. If you remember a scientific method that is the root of our approach to an investigation. So what do we do? We come up to an area and we determine every single possible reason why the issue is happening. Our job now is to approach that in a manner where we start deducting all of those reasons and we're left with the actual solution.

So there's water coming in through a roof. Is it a pipe? It could be raccoons that are in your attic, true story, by the way. It could be your roof, it could be so many different elements. And our job is to not just show up and say, "Oh, there it is. Yeah, I know what that is." No, it's to actually prove why and what is happening so that we can fix it.

Alan Tannenbaum, Esq.:
And destructive or invasive testing. Where does that fit?

Rene' Portieles P.E., G.C.:
Well, it comes into determining that root cause. So if we know the root cause, then know the actual repair. Let me give you a quick example. You come to your building, your stucco looks like it's cracking. Maybe it's falling off the building. You say, "Oh, the stucco's bad, go get a contractor to fix a stucco." And you do that, couple months later, a year later, it starts happening again and again and again. Well, if we come up and approach with scientific method, then we can say, "Well, why is the stucco falling off the building? Let's look a little deeper. Let's take that stucco off and see if it's the concrete that maybe is bad. That's causing the stucco." "Oh, it's not the concrete?" "Let's dig a little deeper." "Oh, it's the reinforcing bars. Oh, that's what it is."

The reinforcing bars have an issue, they're causing the concrete to crack and expand and push the stucco off. So as you see, destructive testing was really the only way in that scenario to really get down to that core issue on why it was happening. And this is really important because fixing stucco can be from $10 to $20, a square foot. Fixing rebar can be from $200 to $400 a lineal foot. So you see how really knowing and getting into the destructive testing can really open up the actual core of the problem that is occurring.

Alan Tannenbaum, Esq.:
All right. Let's talk about different types of improvements. And we're going to talk about site issues first. And certainly at this point, bring in your the photos that you've prepared for today. So let's talk about investigating site issues, roadways, retention, cons, and so forth, your approach and give us some descriptive view by your photographs as to how you folks undertake investigation on a site issue.

Rene' Portieles P.E., G.C.:
Perfect, Alan. So what I'm going to do, I'm going to go ahead and share my screen here. Just give me a moment to set that up.

Alan Tannenbaum, Esq.:
We do see it, Rene'.

Rene' Portieles P.E., G.C.:
Okay. Perfect. All right. Let's talk about pavements. For HOAs. These are brand new sites, and immediately you start getting the photo on the top left, cracks in the pavements. On the top right, you see this alligator cracking pattern. On the bottom, you have all these cracks happening. You don't know why it's happening. We don't know why it's happening either. We need to find out. So the first step is, let's take some cores, scatter them throughout, get a good sample size of different types of different roads that are occurring in your neighborhood.

For example, if you have a one lane, two lane, is it a corridor? Is it a main road? And we get cores from that. We then look at, on the right side is a cross section of that core. And that really lets us know where they went wrong. Was it the asphalt? Was it the sub base? Is there debris? Was it never compacted correctly? So that's really how we approach the pavements. And then we're able to know the core again, issue with the site and then fix it.

Alan Tannenbaum, Esq.:
Rene', do you recommend that? Even where the paving looks okay to at least take some cores?

Rene' Portieles P.E., G.C.:
The reason is I would say yes, because it looks okay now, but remember a road can last 40 years, 50 years, 100 years. You do not want to say it looks good now and then two years for now, it starts to deteriorate. And now you're past your opportunity to get it repaired.

Alan Tannenbaum, Esq.:
What about like the height of the water table? How is that? I mean, is that something you don't want to find out, relative to paving where the water table is for that development?

Rene' Portieles P.E., G.C.:
Yeah, absolutely. So let's use the photo that's on the screen right now. You see how this one has all these little lakes, all these lakes then tie into... if you look at the perimeter of that photo, these lines that have... can anybody see my mouse on the screen?

Alan Tannenbaum, Esq.:
Yes, yes.

Rene' Portieles P.E., G.C.:
Okay. So all this drains into these lakes, and then it gets distributed throughout Florida's water management system. So what happens is you get all of these issues with the water table, where the control structures are either not designed correctly, they're missing or they're at the wrong elevation. And that directly impacts the water of that lake.

Alan Tannenbaum, Esq.:
And what's a control structure?

Rene' Portieles P.E., G.C.:
Yes. Because if the water control structures within area are designed to withstand a certain amount of water.

Alan Tannenbaum, Esq.:
Right.

Rene' Portieles P.E., G.C.:
A lot of times before a big storm, the cities will drain their areas. Well, that also causes your lake to drain if it's connected to that system, but there's usually a wire or water control structure that is designed to keep water on your site and not let it drain out with all the other... it controls the elevation of your area. I mean, there's plenty other things that we can go wrong. That was one of the examples.

Alan Tannenbaum, Esq.:
So on this photo of this retention pond, what issues are you seeing there?

Rene' Portieles P.E., G.C.:
So, one thing here is if you walk around and you see things like this in your HOA, as you see, this is a lake embankment issue. These lake embankments are supposed to be sloped in a certain way. So that one, you don't get at these abrupt changes in elevation. This is an open for litigation against your HOA. This is a tripping hazard. Also, it is for the landscapers. I've been on cases, we've had cases where we've had landscapers fall off and get seriously injured on their equipment because of the improper sloping.

And at the end of the day, it is absolutely the HOA's responsibility because they did not maintain the lake embankments. A lot of times, this is a construction defect, right from the first day, this photo that you see is in a property that's only maybe eight years old. So this should not be happening now. On the first day, it was like that. Another thing is the photo on the right top, right bottom. These are washouts. This happens when again, the piping is not designed properly with the lake embankment, which causes in a rain event water to rush through the pipe and then it takes all the soil with it causing damage to the lake embankment.

Alan Tannenbaum, Esq.:
All right. Rene', you want to move next to high rise?

Rene' Portieles P.E., G.C.:
Yeah. Before I go to high rise, I want to make sure that... for HOAs guys, today after this webinar, you're going to go get your lunch, walk around your HOA. If you're on one of these and just look at the dryer vents, this is something that can easily be done. You do not need an engineer to tell you to fix this. This is nothing but a dryer vent. There are two vents on the outside of your property. One is for your bathroom and that one has a screen. The other one is for a dryer. That one cannot have a screen. We've been on cases with fire, because all it is, is this screen is here. Reach up there, take that screen off. It comes right off with a screwdriver and leave it open. So you don't get any fires in your area. But let's talk about, mid rise. Sorry, Alan. I detoured a little bit there.

Alan Tannenbaum, Esq.:
There you are.

Rene' Portieles P.E., G.C.:
Now, what we see is there's a ton of issues that are happening on mid rise. But guess what guys? High rise have the same issue. So I'm going to of throw a mid rise and high rise together into the same pot and give you a little more examples. One thing that we constantly get with mid rise and high rise buildings is why are my pavers always stained? I've pressure washed my pavers many, many times. They're always stained, they're always calcifying. What's happening? Well, in this photo here, we determined that you see the three dots right here. Those are the drains. Those are actually the high points in the slab. That's a big no-no. The red area is where the water is just sitting, because it cannot get to the drain.

Some other issues keeping with the soaking of water on amenities deck. We have water coming through the decks and causing havoc on your waterproofing, it's waterproofing. This waterproofing on your deck, it's not a swimming pool. It is not designed to hold water for prolonged periods of time. That water under your decks, under your planters that are not drained correctly, will pond, cause damage to your waterproofing. Next thing you know, these are looking at interstitial spaces underneath the pool deck. This is actually the pool where it's causing damage in the waterproofing and now water is coming through, not just the pool area, but also in your expansion joints.

Guys, this photo was taken two months ago. This aren't photos that I find on the internet. Every single photos here, I have taken within the last six months, maybe. On every single photo in this entire show. Well, show or... What do we have here? We have expansion that are leaking. If you look on the right, those are roots. There is an amenities deck, two floors above this. The roots went from the planter down one floor and hit this floor, which is two floors below the planters. Again-

Alan Tannenbaum, Esq.:
What are the special challenges though? Because the architects I've seen, they like to create sometimes elevated pool decks and poles. They like to put planners on upper floors. What special challenges does that create from a waterproofing standpoint?

Rene' Portieles P.E., G.C.:
Usually, their designs a lot of times are okay. But the big issue that we're having is in the installation or maybe the wrong spec is used. So there's so many different things happening. There's the architect that has a ton of different little situations, wall to planter. Planter, wall to floor, there's an expansion joint, there's a concrete building adjacent to this. So there's so many different little details that happened, very easy for a mistake to occur. In construction, again, trying to determine all of those little details and incorporate them into a design and into the proper construction methods gets out of hand and they perform construction errors in the field.

Sometimes there's different products that need to be used and the contractor gets it and says, "Okay." He reads the first one and he puts that everywhere and unfortunately it's not like that. That one was only used for a certain area and he needs another specialty product for a certain other area. In this particular case here, this was an older building and it's really a lack of maintenance. It's not looking at your building. Guys, 40 years and not going to go into a 40 year certification dissertation, but 40 years is way too long to start looking at your building.

You should get an expert, an engineer out there who knows how to evaluate these areas. At least once every five years, you should have your own maintenance staff. Review the building, do walkthroughs yearly. Because if this simple two things that I just told you, would've been done on this property, we would not be having a $4,000,000 or $5,000,000 repair. It would not be there. It would be $100,000 repair.

Alan Tannenbaum, Esq.:
Let me ask you this Rene', you talk about product. So let's say we have an elevated pool. It's got a nice paver deck around there. What are some of the product choices as far as installing the pavers that you've seen cause problems in the field? What kind of product issues?

Rene' Portieles P.E., G.C.:
Well, really, it depends a lot on the mortar that holds the paver if you're mortar set. There are interior, believe it or not. Interior mortars that you can use on the inside of the property and there's exterior ones. The exterior ones are made to be saturated in water and do not calcify. And I'll explain, I have a photo of that, a real clear photo of that in a couple slides. Sand that is used, you just can't get shell rock out there and put any sand on your pavers. It has to be a sand that does not have a lot of calcification, that does not leach. Because that will clog all of your drainage pipes will wreak havoc on your structure. So it's really important that that happens and then also think of it this way guys, you have paver, you have sander mortar, you have some sacrificial slab that is used for drainage, you have your waterproofing and then your structural slab.

In order to get to your waterproofing, it will cost you $200 or $300 a foot just to get there. So what do you do when you get there? Do not choose a one-year product, do not use a three-year product, choose a product that can last a long time because the real money is in getting to that area. Once you get there, there's products that are only a couple dollars apart, but will give you a 15, 20-year life. So sometimes it's worth spending a little bit more on a better product so that you don't have to do all this over again in six or seven years.

Alan Tannenbaum, Esq.:
But let me talk about subcontractors too. And I think the pavers is a good example. So a developer has a favorite subcontractor, who's done all their ground level paperwork on their driveways and so forth. And all of a sudden that developer gets a design that calls for a paver installation on an elevated pool. And it's very easy for that paver contractor who does not necessarily have done an elevated paved job before.

Rene' Portieles P.E., G.C.:
Right.

Alan Tannenbaum, Esq.:
He's just doing the same job you did on the ground floor level, using the same products, taking it up to the third floor, where it may be a totally inappropriate use of products for an elevated deck of that sort. You find that?

Rene' Portieles P.E., G.C.:
All the time. It is amazing how many buildings out there right now currently have that exact situation that you just said there.

Alan Tannenbaum, Esq.:
Okay. Go ahead. What are we seeing in this latest slide here?

Rene' Portieles P.E., G.C.:
Well, this is another thing. If you guys are walking through a parking garage and you look up and you see gutters, that top right photograph right there. Okay, gutters don't belong in a parking garage guys. This is a temporary solution. This means that your expansion joints are leaking. Your waterproofing has failed on the floor above this, but what do you do? You put gutters on it. And then what happens when you put gutters on it? Look at the bottom picture. Water is leaking through the structure and causes the structure to corrode, causes the reinforcing bars to fall. And the concrete to crack. The association paid about $5,000 years ago to fix this. You see the left hand side, that is a $5,000 repair. A year and a half to two years later, they did not fix the core problem, which is that the waterproofing was failing.

Rene' Portieles P.E., G.C.:
So what happens? Look at that little area right here on the right. It's happening again, guess what? Got another $5,000 repair there. If you would've $7,000 or $8,000 instead of $10,000 now, you would've fixed this issue. And this is only in a little eight foot area. Imagine, these drudges are massive. How much of this issue is happening? Look at the left picture, top left. If you look around your garage, you look up and you see your drains look like this, waterproofing issues. Okay? You can see how it's just corroding the pipe. So now, instead of just having to remove and replace the entire drain body, the entire pipe, you are now having to do that and a waterproofing, do it once the first time. If you notice in this area, this has already been repaired a few times and the pipe that they just keep putting on just keeps corroding. Okay. Really it's important to get these things repaired.

Alan Tannenbaum, Esq.:
Rene', there's a question. Ronald asked, "Is there anything we, as condo owners can accumulate or document before contacting you, such as photos of cracks with a scale?" I'm assuming this is a question maybe pre-transition because if it's post-transition, you really should get the engineering firm out there as quickly as possible. Not only to nip the problems in the bud, but also there's time limitations that apply that really create a situation where you got to get the engineering done sooner than later.

But as far as documentation it's concerned from our perspective, photographs are great, videos are great. Make sure the time sequence, one of the things I've seen Rene' do when he is going to take on a multi-building project, the first picture he takes is the address of the building. And then the subsequent pictures, are flying to that building. Because we've had groups that have dumped a pile of photographs on us and they're not designated to which building or location it was. They're really not very helpful. So documenting when the photograph was taken, that's really important and who the photographer was is, is really important too.

Rene' Portieles P.E., G.C.:
Yeah. Especially before pre-turnover, what happens is any issue that you keep having, we've gone into rooms and that room looks perfect. And then we find out later that the building engineer, the chief of maintenance paints that room every month. Why? Because every time it rains, water comes into that room. But when the engineer went in there, it looked brand new. Why? Because he just happened to paint it the day before. So it's important for us to understand what issues have you had. A lot of times you get to a site and I hear the property manager say, "Oh, yeah, that pump. Oh, yeah, we replace that every six months." Thinking that that's normal because it's a big building and there's a lot of load on the pump.

No, that's not normal guys. Tell your engineer that, write it down. It may be that there's issue with capitation of the pump or prongs with the piping and it's not the pump, it's the pipe, that's the problem. So it's really important to just like Alan said, document, tell your engineer whether you think it's important or not, let your engineer decide, tell him everything that you have. And then in a nice list. And then as he does the investigation you can fix all of those things into account.

Alan Tannenbaum, Esq.:
Now, there was also a question about what do you do about birds getting into an open dryer vent? I don't know if that's an engineering question or?

Rene' Portieles P.E., G.C.:
Birds? We haven't had birds going into the dryer vents, but there are things for me because usually the dryer vent, unless the unit is shut down or closed for a long time. Birds don't like when you turn on the dryer and that hot moist there comes out and people usually once a week, maybe will turn on that vent. But if you are having some issue, you can put those little prongs, for the birds to sit on and just like near the entrance. So it deters them from going in there, but you cannot have streams on them because they will trap lint.

Alan Tannenbaum, Esq.:
Okay. Rene' let's move forward, have about 20-

Rene' Portieles P.E., G.C.:
There's also... and one more thing to that one. There's also, if your dryer vent is open, you can have a flapper, it's a little gravity flapper, or a spring flapper that will keep it closed. And then when you turn it on, it opens up and then it'll close. So birds won't get in there. So if you are having a bird issue going into your dryer vent, that's your solution, buy a gravity damper. They're pretty inexpensive. And have it installed on the outside of the building.

Town homes and duplexes. All right. Some issue that we see in the town homes, the duplexes, as you see the four on the left, beautiful roofs, all different colors. I mean, the work is amazing. You go inside, it is a disaster. Now, this is one thing guys that you can do right now. Super easy. Do not need again, an engineer to do this. We always get complaints, "Rene', it's hot in my room, but the living room is cold." Or vice versa. You go in the attic, the living room's installation is perfect. The bedroom looks like this, on the photo on the right. This is something super easy that you have to do right now, get your installation in order, make sure it's tucked. Make sure it is tight between the trusses and uniform and complete. These are small things that you could do right now.

Other issues that we see a lot with town homes and duplexes are roof leaks. Lot of roof leaks. Look at the photo on the left. This roof had a leak. So what did they do? They put another roof on top of the existing roof. Look guys, I can't make this stuff up. Look at the one on the right. When we went to the go take off and investigate where the roof leak was coming from, we had to remove a portion of the roof. When we did that underneath, yes. We found another roof under that. This is not the right way to do it. Let me tell you why. People say... because I've gotten this question before. "Rene', it's better to put a roof on top of a roof. It's double roof. What's better than one umbrella? Two umbrellas. What's better than that? An umbrella under a pavilion."

No, that's not how that works. The problem with double roofs is that they do hold moisture. Your roof is designed to breathe. It needs to breathe. You are trapping now and choking off the air that is in this area and it's causing the roof to retain moisture. Any moisture that goes on there gets retained. Doesn't allow it to breathe. Also, next slide, roof rot. If you have a roof leak, chances are you have rotted wood in your roof. So what did you just do? You put another roof on top of the existing roof and you nailed it into a rotted piece of wood. That will not hold, it actually causes now more holes in your roof and your roof will continue to leak.

Alan Tannenbaum, Esq.:
Rene', before you move forward, I do have to mention one thing. So when we talk about town homes and duplexes, sometimes a town home and duplex is under a condominium regime. The condo association has full maintenance and repairs for responsibility over the common areas, the roof, the walls, and so forth. What developers did, probably gone back at least 20 years. They started putting town homes and duplexes within a HOA regime. And it does not give the homeowners association, the automatic rate, to maintain and repair or even investigate roofing issues or wall issues or window issues. What it takes is an amendment of the documents in order to put that responsibility on the part of the homeowners association versus the owners. We continue to run in the situations, Rene' continues to run the situations where you have six connected town homes with a common roof structure.

And the documents say that it's each owner's responsibility to repair their own roof. And you can't divide a unified roof into five different sections and have five different roofers try to do repair or replacement on that roof. So it's really important if you're managing a homeowner's association that administered either in full or in part connected town homes or duplexes to really consider amending the documents, which is really the only basis that you can get an engineering firm out to investigate those type of common issues. Without that, in theory, you can't use association money to investigate an issue that's an owner issue. So very important that you consider that. Go ahead, Rene'.

Rene' Portieles P.E., G.C.:
Right. And now I saw a few slides left. So I'm going to talk about it, I'm talking too fast. I tend to talk really fast and loud. So bear with me.

Alan Tannenbaum, Esq.:
You're doing a great job.

Rene' Portieles P.E., G.C.:
For town homes and duplexes, we get a lot of issues with pavers, a lot of issues with tile, differential settlement of tripping hazards that occur when they have tile to concrete here to pavers. So there's a lot of that going on. And you know what? Let me switch gears a little bit. I'm going to tell you issues that are happening in all of these. Between mid rise, high rise, town homes, duplexes. If there are common elements that all these buildings have. So I'm going to call these all buildings.

And I got a few examples of these, the famous stucco issues. If you look up in your ceiling of your balcony is falling off, the stucco falling off your building. If you look around and you see on the photo in the left, this white staining that is happening, that is very important. That means that water's getting in behind the stucco and it causes this calcification, which is the minerals that it's taking from the actual concrete, that it leaves it behind the stucco and actually pushes it out and starts delaminating it.

So it's important to catch that pretty early, the infamous, famous water intrusion through a window. Okay? It doesn't matter where you live. It could be a residential house or a high rise tower. We are constantly getting water intrusion through windows, causing significant damage to the interior of the property. It's important as you see here on the right hand side, that plywood. I'm sorry, two by four with visine structure is a chamber test. We can test the window, determine exactly where it's coming from. So we don't have to remove, replace the window. We can change whatever portion of that window is causing defects and water intrusion. Sometimes you have to change out the whole window, but this will tell you exactly where it's coming in from.

Alan Tannenbaum, Esq.:
What are the signs? If you're looking at a window, what are the signs of a potential problem? What would you be looking for?

Rene' Portieles P.E., G.C.:
Sure.

Alan Tannenbaum, Esq.:
Okay.

Rene' Portieles P.E., G.C.:
It's right in the structure. Right here in this photo, I'll show you right here. When you look at that nice marble window seal that you have, look on the left and the right of it. And right here in this corner that I'm circling right here. There will be a little bit of a stain or a discoloration. Looks like somebody painted it or something, it's a little brown. That means you have water intrusion. Another area where these windows leak a lot is if you have like in this photograph, two separate windows, one window on the top, one window on the bottom, that's separated by this bar right here. That's called the mullion. In the middle here, you will see then again, stainy. You could also get your finger and tap it. And if your finger and tapping it goes right through it. That means that it's been wet so many times that it's actually deteriorated the wall.

Alan Tannenbaum, Esq.:
What about exterior cracks around windows? What do they signify?

Rene' Portieles P.E., G.C.:
The exterior cracks around the window, if there is a stucco issue that is occurring, it can cause water damage that goes in through the actual base here of the window or the top seal or the walls of the window. It also, if there's cracking around the sealants. So if you look at your window from the outside and you look at where that window touches, the stucco, there should be a little bit of caulking in there. Look to make sure that that caulking is nice and thick and not cracked. If you look at it and it's cracked, it really needs to be replaced. If not, that is the first avenue of damage to your window. Guys, understand that that little caulking that's around your window, that's really not the thing that causes water to go into your building.

These windows, have it into your ceiling, then that's your waterproofing. The problem is if that exterior ceiling is cracked, it allows water to go in and sit on top of that waterproofing sealant, it deteriorates it, and then it causes your window leak. Now, instead of just caulking the outside of your window, the only way to fix that is to remove the stucco around your entire window. Sometimes you have to take the window out, reinstall it. Depends on your system, but you have to then take out that structural sealant, reapply that structural sealant. So you could just imagine instead of $1 a foot, you are now at $20 a foot. And all it is, is just lack of maintenance. You just simply did not maintain the window properly, or it was installed incorrectly. It was installed with the improper or thickness of that sealant on the outside.

Alan Tannenbaum, Esq.:
Rene', we have a question. The HOA I manage came under homeowner control in September of '21, boards put it together a letter of developer deficiencies. Those items that were not listed prior, turnover as a developer still responsible to make any repairs after turnover. First of all, for most HOAs and condos, it's actually the list that's created after turnover that's really the relevant one. Because you have the ability to get an engineer and investigate the entire property. So certainly things that are discovered after turnover are very relevant to discuss with the developer. As far as the question, is the developer still responsible to make any repairs after turnover?

The answer is yes, but I want to make an important distinction. After turnover, the association is now in control of all the repairs that are done at the project. You should not let a developer or contractor in with no control just to undertake repairs. What you need to do is number one, have your own engineer indicate to you what needs to be repaired and how. Get the developer to agree to do it according to those specifications and let your engineer prove any work that's being done and make sure there's proper insurance in place while they're doing the work. The idea of just reporting a defect to a developer or a contractor and letting them come in to do whatever, oftentimes the problems hidden or exacerbated by what they do, you're under no obligation to accept insufficient or ineffective repair by a developer, go ahead, Rene'.

Rene' Portieles P.E., G.C.:
Right. Right. Yep. I'm almost done. A couple of other things that we constantly see. These are real photos here. The one on the left is a ceiling of a parking garage, the photo and people say, "How does this happen? How can you let this happen?" The photo on the right is of a different property. This is how this happens. It starts off where my mouse is with the little crack. That crack then gets a little stainy, that then falls off and it opens up, what does the association do? Paint it white, if you don't see it. This is not structural paint. It really needs to be cut out and redone because if not, the photo on the left occurs, this I believe right now is not yet repaired. This is all under investigation to try to determine the extent of this, but the photo on the bottom right is a project that we have currently right now of on property here, down in Miami, that we are fixing.

Again, this doesn't happen overnight. More importantly, this does not happen in one reign of a board. This is a board and then another board and then another board and then another board. Okay? That is, I think the key. If there's anything that you remember for this is you have to be proactive guys. You really have to understand your building, get somebody to help you understand your building if you don't and put things into priority. There's probably repairs that you don't have to do today. You can do tomorrow, but you know what? There probably repairs that you should do now because if not, that repair turns into a monster repair in the future.

Alan Tannenbaum, Esq.:
All right. We've got a question from Melinda, but Melinda probably too complex to try to handle in an open panel like this, but I'm going to give your question to Rene' and see if his mechanical people have some comments on it. So we'll have to respond to it offline. Rene', leave at least a few minutes to deal with how you do a report, but go ahead with your slides.

Rene' Portieles P.E., G.C.:
Sure. So again, issues with calcification. This is what we talked about. Improper mortar used to lay your tile down. Issues with sound. Everybody has issues with sound. You look inside the wall and it's supposed to have that sound continuation blanket. And then when you open it up top left, you see it's hollow. It's not there and then going into the reports. Okay.

Alan Tannenbaum, Esq.:
Let me set up the question first.

Rene' Portieles P.E., G.C.:
Sure.

Alan Tannenbaum, Esq.:
So what's the purpose of a written report and talk a little bit about the standards that you discuss within an investigative report.

Rene' Portieles P.E., G.C.:
Sure. The purpose of a report is to put things into perspective. Really, it's what it is. It'll separate if you're going the turnover. It separates what's a code violation, a deviation from the plans, a defect in construction and improper turnover maintenance. That's important because if you're going to be litigating, code violations are code violations. End of story. Deviations are deviants from the plan. That may be a problem. It may not be a problem. If a column is supposed to be here and they put it here, is that really a problem? Yes or no?

You need to decide that. Defects are defected construction. It can be aesthetics, the stucco goes this way in this area and then the other area, it goes up and down. What's the damage? Well, there could be a huge damage because maybe during construction, they had a major malfunction in some area of that wall and they had to redo it a few times.

That's important to understand. Improper turnover maintenance is when the developer has a rule of this property and gives the keys to you to take it. And it's your responsibility now. Well, guess what? If you didn't maintain it properly, you are now stuck with something that you cannot maintain. You have to remove and replace. That's a big problem, but going into a report, putting through perspective, we need to tell you where things are, what we observe. We split into these categories.

We tell you what discipline is the cause of that issue. And then why is the problem? I can't say that that is a problem because Rene' says it's a problem. No, I say it's a problem because the 2004 building code section 1403 says, it's a problem. And then a photograph to let you know what the issue is. If needed, there is a survey that you can find, if we go out there and there's water ponding on the roof, well guess what?

Maybe in the future, it's going to be a dry day, the water will be there. So we need to really put things into perspective. And the codes that we do is we do a full document review of all the documents relating to your property. For example, we put everything into perspective on your plans. Another thing... I've hit you guys a lot with this today, but another thing that I really want you guys to do and write this down is go through your plans, find out where they are, find out if they're complete. I can't count how many times I go to somebody, "Where are your plans?" And they open up a room and it's just boxes and boxes and boxes of just plans, stacked up top of each other. They have no idea what they have or what's going on.

This is first step. First step is get your plans in order. They're very, very important. I don't care if your building is one year old or 60 years old, doesn't matter. Get your plans in order, we have to review those, put them into perspective. We scan them, so they don't keep deteriorating in that storage room that you haven't locked in on. And then we also look at the applicable codes, find out all the codes of your building. We have to find out not just the codes, but who was responsible for all of the issues that your building has, because you may need to contact these individuals in the future. And if you're in a turnover, we need to know who of course was responsible.

Alan Tannenbaum, Esq.:
Yeah. One thing to keep in mind. Number one, there's a statute in Florida, 553.84, which says that if a party violates a building code, the party damaged has a cause of action, which is a very important statute that we utilize in our defect cases. But keep in mind that the building code is a minimum code, the minimum standard of construction. If you're purchasing into a high end, high rise, what the common law says that you're entitled to have a level of equality based upon a structure of like, kind and quality. So you could be in a luxury high rise, or actually the standard that the developer has to meet is much higher than what the building code requires. And frankly, what property is selling for in Florida, where even a fairly modest town homes are going for hundreds of thousands of dollars.

I would say the standard of quality that Florida construction needs to be measured against is a much higher quality standard than the minimum building code. And those are the type of things that will be reported on. Certainly planned deviations. Part of the implied warranty in Florida is, was the building built according to the plans and specifications, doesn't necessarily have to be a structural problem. It could be an aesthetic issue where the building look is different than what the plans required, or the developer left out an amenity is still a compensable event. Real quick, there's a question. Is there a specific building code requirement for windows that are... and Michelle put... there it is. That are to be used in EIFS wall construction. How about that one, Rene'?

Rene' Portieles P.E., G.C.:
Well, I mean, there's building codes for windows, there's that. There's ASTMs on how the windows is to be tested, how it's supposed to be manufactured, how it's supposed to perform. That goes for the building envelope. So you can be on wood, you can be on concrete, you can be on cast-in-place concrete. You can have an EIFS system. EIFS has its own also set of standards. And those as details on how it interacts with openings are important also.

So the building code is more of general, but it's when you really dig into what the building codes as inside of it, which is the ASTMs and all of those references. Those are the ones that really will call into EIFS openings, penetrations and windows as well.

Alan Tannenbaum, Esq.:
All right. There's a poll that Michelle put up, which we appreciate you responding to. Again, for you managers, make sure that Michelle has your cam numbers so she could report your credits for today. We have a few more minutes to answer some question. If it's cracked and peeling all around the window frame inside the building, is that a sign of a problem?

Rene' Portieles P.E., G.C.:
Yes. If it's cracked inside the building, that means that you're having movement of your window and you should not have that. That's either a structural problem, or that there's some water intrusion that is happening within that, which is causing cracking of your drywall and causing that little gap to occur. That could be either structural problem with the window or water intrusion.

Alan Tannenbaum, Esq.:
All right. There's a question from Jordan. What if the documents say the windows are the owner's responsibility? My first response to that is if there's any way to amend your documents so that windows are not owner responsibility for the long term, you'll be far better off. I put certainly sliders in that category, too. What happens is if an owner doesn't maintain their window properly, where's that work going to go that's going to get in. If you're in a mid rise or a high rise, it's going to travel by gravity downward, and you're going to have problems in the units below that presents a very difficult situation, same thing with sliders. And frankly, now you're having all different types of contractors show up at your building to do work. And you certainly want to avoid that. Rene', you have an opinion on that. Rene', you have an opinion on that on windows?

Rene' Portieles P.E., G.C.:
Yes. Yeah.

Alan Tannenbaum, Esq.:
You agree?

Rene' Portieles P.E., G.C.:
Oh, no. Absolutely. There's nothing I can add. You said it dead on. That's exactly...

Alan Tannenbaum, Esq.:
All right. Question, if a corner stairwell has had cracks for years as an engineer and report suggested? Probably, right? Yes? If a corner stairwell has had crack for years, is it good to call an engineer in?

Rene' Portieles P.E., G.C.:
Yes. Yes, because that crack only gets worse with the changing of the seasons and with if... it'll start increasing the decreasing, which is causing additional stress on that crack causing it to open. And the next thing you know, you start getting water intrusion coming in.

Alan Tannenbaum, Esq.:
All right. And the question, if there's just a few cracks in the stairwells, are they common or what necessitates further investigation?

Rene' Portieles P.E., G.C.:
It really determines on the size of the crack. If your crack is very, very, very thin, like a hair. They're called hairline cracks, you have to just keep a close eye on them. You might want to paint them. If the crack is greater than like your hair, so it's getting a little big or that the crack doesn't just separate, but it also has an offset. And it's separated, that's when you need to call somebody to come in and look at it. Because there's something else going on there.

Alan Tannenbaum, Esq.:
Yeah. There was enough close on this. We had a project in Sarasota where it was a 35 year old building. And the manager who lived on the fourth floor tried to get into their unit one day and they couldn't open the door. And fortunately, within a couple of days, all the occupants were out of the building. They had a major failure of a transverse lab at the fourth floor after 35 years. And one of the things about the serve site situation is at least from report of people at the project, that building was talking for at least a few days before it collapsed.

There was popping, there was different sounds that were coming from... and the building for somebody who had a discerning ear, would've known that something major was imminent, because those sounds are reported. So pay very close attention to your building by reacting quickly, you can avoid some catastrophic event and certainly a major crack showing up or a piece of stucco on the ground. The next chunk to fall off could be much larger than the one that you found the first time. So good to react to that. Anyway, Rene', you got one more parting word. It's 12:03, parting word.

Rene' Portieles P.E., G.C.:
Parting word. Guys, I need you to understand your building, walk around your building. Look at it. Just like Alan said, "Your building is talking to you. It wants to be listened to." And I'm not saying this in a mean or evil way, but don't take the word of one person who maybe is on the staff. Look around, there's so many issues with different building engineers that come and go, and then the information, the history doesn't get transferred to the new guy, the new guy then is by himself.

He doesn't really know where stuff is. It's really important to get a grasp on your building. If it's not with the chief engineer, get yourself an engineer, it doesn't matter who it is. Somebody with forensics really helps significantly because they get that to the root cause. And they'll be able to really give you a list of where your building is now and then using priorities. You can move on with the repair either today and tomorrow.

Alan Tannenbaum, Esq.:
Okay. Everybody-

Rene' Portieles P.E., G.C.:
And thanks having me on.

Alan Tannenbaum, Esq.:
Yes. Thank you, Rene'. Hopefully it was enlightening for folks and we will have a great topic for next time, which we haven't decided, but we appreciate Rene' being with us and everybody have a great day. Thank you.

Sarasota

Main Office
1990 Main Street
Suite 725
Sarasota, FL 34236
Map & Directions
941-316-0111
888-883-9441
941-316-0515 Fax

Orlando

Branch Office
BY APPOINTMENT ONLY
214 S. Lucerne Circle East
Orlando, FL 32801
888-883-9441

Clearwater

Branch Office
BY APPOINTMENT ONLY
4600 140th Avenue North
Suite 180
Clearwater, FL 33762
888-883-9441

Fort Myers

Branch Office
BY APPOINTMENT ONLY
1415 Dean Street
Suite 100
Fort Myers, FL 33901
888-883-9441

TLK Legal © 2021 | All Rights Reserved | Website by Think Donson