Repair-before-litigation decisions
A contractor is offering to fix the problem today. Should the board say yes, or wait?
When a contractor offers to fix a problem before you sue, the safe default is to give them notice and a chance to inspect first. Repairing or altering the defect beforehand can support a spoliation defense that weakens your claim. The one exception: an immediate safety hazard, where you repair now and notify stakeholders as you go.
Evidence first, unless safety says otherwise
A contractor calling to say "we can send a crew Monday" sounds like good news. Before the board says yes, know what fixing the problem first can cost you later. General spoliation doctrine treats a defect still in place, the cracked stucco, the failed flashing, as evidence. Repair or alter it before the responsible party has had notice and a fair chance to inspect, and a court can treat that as destroying evidence relevant to the claim, even without proof that anyone acted in bad faith.
Some states also run a formal pre-litigation notice statute that spells this sequence out; check whether yours does before any repair decision, and see Preserving evidence.
"The harshest sanction for spoliation of evidence is fatal: the altogether dismissal of a defect claim."
Source: Beyond Repair: Your Duty to Preserve Evidence Ahead of Construction Defect Litigation, by Brandon Rutledge, ConsensusDocs
The safety exception
That default flips the moment someone could get hurt. A stair tread rotted through, an active leak feeding mold behind a wall, a railing that no longer holds weight: none of that waits for a litigation calendar. Fix it. The recognized practice is to notify the contractor, the insurer, and any other stakeholder before or as you act, even in an emergency, so there is a record that safety, not convenience, drove the decision.
"If litigation seems likely, prioritize evidence preservation over immediate repairs unless safety is at risk."
Source: Don't Spoil It: The Line Between the Need for Repairs and Spoliation of Evidence, Koley Jessen
A statute may already set the sequence for you
Where a state has enacted a right-to-repair or notice-of-claim statute, the statute itself may already answer the repair-now-or-wait question, because it builds an inspection window into the process before the board can sue at all.
California's version lets the claimant observe and electronically record the builder's own statutory repair, and protects anything that happens during that process from being used against the claimant later as a spoliation defense. Other states set different windows, different notice requirements, or none at all. Confirm with counsel whether your state has an equivalent statute before treating any repair as safe to authorize on your own.
"The builder shall, upon request, allow the repair to be observed and electronically recorded, video recorded, or photographed by the claimant or his or her legal representative."
Source: California Civil Code, Right to Repair Act, section 922, California Legislative Information
A settlement check is not a repaired building
Even where the board wins a claim outright, winning is not the same as fixing the building. Litigation and legal costs shrink what a settlement or judgment actually delivers, and boards can end up with less cash on hand than the repair bids they collected years earlier. If a shortfall shows up, the board's options are the same ones any capital shortfall creates: a special assessment, a loan, drawing reserves, or phasing and reprioritizing the repair work. See Funding emergency repairs and Settlement considerations.
"A construction-defect settlement and a repaired community are not the same thing... A settlement check does not fix a building."
Source: Colorado HOA Construction Defect Litigation, by Gail Gudder, Higgins, Hopkins, McLain & Roswell, LLC
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
The board finds a slow roof leak. No one is at risk right now, and a roofer offers to patch it this afternoon, but the original roofing contractor has not been contacted. What should the board do first?
A burst pipe is actively flooding a stairwell, soaking drywall and leaving the stairs slick enough to be a fall hazard. The board wants to protect its evidence for a possible future claim. What should it do?
The board settles its construction defect claim for an amount that matched its original repair estimate. A year later, current repair bids come in higher than the settlement. What does this most likely illustrate?
- Beyond Repair: Your Duty to Preserve Evidence Ahead of Construction Defect Litigation, by Brandon Rutledge, ConsensusDocs
- Don't Spoil It: The Line Between the Need for Repairs and Spoliation of Evidence, Koley Jessen
- Colorado HOA Construction Defect Litigation, by Gail Gudder, Higgins, Hopkins, McLain & Roswell, LLC
- California Civil Code, Right to Repair Act, section 922, California Legislative Information
- California Civil Code, Right to Repair Act, section 916, California Legislative Information
Construction Defects
Not sure your state has a repair-first statute at all? Read Preserving evidence next.
Whether a right-to-repair statute applies, how long a contractor's inspection window lasts, and whether you are guaranteed the right to observe or record a statutory repair all vary by state and by your governing documents.