The Board can negotiate on its own, but it may not be wise. Here's why:
- Preservation of Warranties: For condos, steps should be taken to preserve statutory warranties, which are limited in time. A construction defects' lawyer would be attuned to these and act to preserve the warranties while negotiations proceeded. A condo board acting alone could inadvertently allow warranties to run.
- Not Allowing Claims to Become Time Barred: Both the statute of limitations and the statute of repose limit the time allowed for pursuit of claims. A construction defects' lawyer would be attuned to these and act to preserve claims while negotiations proceeded. A condo or HOA board acting alone could inadvertently allow claims to become time barred.
- Identifying Responsible Parties: Construction defect claim recovery is often only maximized where parties beyond the developer are included in negotiations. A construction defects' lawyer will identify all potentially-responsible parties and include them in negotiations if necessary to bring about full recovery. A condo or HOA board acting alone could fail to include necessary parties beyond the developer and thus hamper the association from achieving maximum recovery.
- Compliance with Chapter 558, Florida Statutes: This statute requires that notice to the developer and other responsible parties be drafted in a particular form and sent via certified mail. After notice is sent, the responsible parties have the right to inspect the property and request documents from the association. A construction defects' lawyer would be sensitive to the requirements of the statute and assure that the association meets the conditions of the statute. A condo or HOA board acting alone could fail to comply with the statute, prejudicing the association's position if the matter ended up in court.
- Preservation of Evidence: A construction defects' lawyer would know that steps need to be taken to preserve evidence, and be aware of the consequences if evidence is not properly preserved. A condo or HOA board acting alone could fail to properly preserve evidence, prejudicing the association's position if the matter ended up in court.
- Determining the Settlement Value of the Claims: An experienced construction defects' lawyer will have significant experience in valuing claims and be able to advise the board on what would constitute a fair resolution. A condo or HOA board acting alone could fail to recognize the value of the claims and as a result aim too low or too high in negotiations.
- Negotiating Prowess: A experienced construction defects' attorney can present the claims in their best light and direct a negotiating strategy maximizing the association's leverage. Furthermore, just the appearance of an experienced construction defects' lawyer leading negotiations for the association is a clear message to the responsible parties that the association is serious about securing a fair settlement. A condo or HOA board acting alone would not nearly be as formidable in conducting negotiations on behalf of the association, leading in many cases to mediocre offers by the opposition.
- Making Sure the Settlement Paperwork is Right: Once a settlement is reached, it is customary for a settlement agreement to be drafted. A construction defects' lawyer will negotiate terms which best protect the association, including not waiving rights to pursue latent defects which might arise post-settlement. If the settlement involves remedial work, protections would have to be incorporated to assure adequate performance, including the establishment of warranties for the repairs to be performed. A condo or HOA board acting alone would not be aware of necessary settlement clauses to be included and others to be avoided.
- Justifying a Settlement to the Owners: Owners, either at the time of settlement, or even years after, may challenge the adequacy of the settlement reached. A Board will be in a much better position to justify the settlement reached if it is a able to report to the owners that an experienced construction defect lawyer was there every step of the way in advising the Board, including that the settlement reached were reasonable.