The Voice of Colorados Homeowners

Sullan², Sandgrund, Smith & Perczak, P.C.

Denver Construction Defect Lawyers

Most of these questions are typical of those raised by single-family, condominium and town home owners, regarding problems with their Colorado homes. Our law firm regularly represents these individual home owners, as well as town home and condominium associations, along with commercial property owners in Colorado. Because the issues involving commercial property owners are often more complex and fact-specific, the sorts of problems commercial property owners face are not addressed in as much detail here.

1. Unresponsive Builders. I am having problems with my home, and my builder is not being responsive. Do I need to hire a lawyer and file suit?
   
   
2. Is My Home Warranty My Only Recourse? Why should I consult with an attorney when my builder has given me a written warranty?
   
   
3. Expired Home Warranties. My builder-developer says that I have no remedy for problems I am having with my home because they are not covered by my written warranty and the time to make a claim under that warranty is expired. What should I do?
   
   
4. What's a Defect? My builder says that I am being too picky about the condition of my home, that no home is perfect. When does a problem become a "defect" and my builder become responsible to fix it?
   
   
5. Second Owner. I am not the original owner of my home. Do I have any remedies against the builder-developer for construction defects?
   
   
6. Triple Damages. I understand that home owners are allowed to recover triple damages against builder-developers for defects. Is this true?
   
   
7. Arbitration. My builder tells me that if I do not like the way it is responding to my complaints, there is an arbitration clause in my purchase contract that requires me to arbitrate my claims, and that I have given up my right to a jury trial. Is this true?
   
   
8. Small Print in My Home Warranty. Every time I tell my builder's warranty department that I was promised something by the salesman who sold me the home and that promise has not been kept, the warranty manager says, "If it isn't in the limited warranty agreement, it's not our problem." Is this true?
   
   
9. Statutes of Limitation. A friend of mine said that in Colorado I only have two years to sue those responsible for construction defects. Is this true?
   
   
10. Damages. What sorts of damages and other relief am I allowed due to construction defects in my home?
    
    
11. Homeowner Associations. Who has the right to make a claim against a builder-developer for a problem with a town home or condominium?
    
    
12. Single-Family vs. Multi-Family Owner Rights. How do my rights differ if I am a condominium or town home owner rather than the owner of a single-family home?
    
    
13. Class Actions. What is a class action?
    
    
14. Property Values. Will a lawsuit hurt my propertys value and make it difficult to sell my home?
    
    
15. Hiring a Lawyer. What information should I be ready to provide if I decide to hire a lawyer?
    
    
16. New Laws. I heard that Colorado has passed two Construction Defect Action Reform Acts. What do these laws say and how do they affect my rights as a home owner?
    
    
17. Special Interest Legislation. Is there anything Colorado homeowners can do to protect themselves against the further stripping away of their rights due to special interest legislation backed by wealthy development and insurance company interests?

1. I am having problems with my home, and my builder is not being responsive. Do I need to hire a lawyer and file suit?

A lawsuit should always be the option of last resort. We strongly believe that a builder-developer should be given every reasonable chance to stand behind its product and make things right, especially because of the delays, expense and uncertainty of court action. Because of extremely tight time limits that apply to bringing construction defect lawsuits, because what appears to be a minor problem may be the symptom of a major problem, and because it takes some time to put a lawsuit together, early consultation with a lawyer is advisable just to understand your legal rights and any potential suit deadlines that may be approaching.

Uncertainty arising from changes in the law following passage of the Construction Defect Action Reform Acts of 2001 and 2003 makes attorney consultation even more advisable. Remember, assurances by a builder or other person that the problem is only minor, or that the problem will be fixed or will surely stabilize on its own, are no guarantee that a deadline for filing suit or making a claim will not pass in the interim, preventing the home owner from ever seeking legal relief.

For a more technical discussion of the Construction Defect Action Reform Acts of 2001 and 2003, you can read the following law journal articles written by the firm's attorneys: Sandgrund, Sullan, and Achenbach, "The Construction Defect Action Reform Act ," 30 The Colorado Lawyer 121 (Oct. 2001), Sandgrund and Sullan, "The Construction Defect Action Reform Act of 2003 ," 32 The Colorado Lawyer 89 (July 2003), and Sandgrund, Sullan and Seidman, "The Homeowner Protection Act of 2007," 36 The Colorado Lawyer 7 (July, 2007).

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2. Why should I consult with an attorney when my builder has given me a written warranty?

This is a difficult but important question. Any of the following issues may come up with regard to a written warranty that may make consulting with a lawyer important:

There are many other reasons why the existence of a written warranty may not solve all problems affecting your home and why your builder's investigation into your warranty complaint may be biased.

However, such warranties, when issued by honest builders who apply them in a fair manner, can provide a reasonably fast and efficient method to deal with typical home problems. Too often, however, many builders do not adequately staff their warranty departments and do not respond in a timely fashion to complaints. In some cases, when builders see their warranty "reserves" (i.e., money set aside for future warranty claims) being depleted by an unexpectedly high incidence of problems, claim processing delays and claim denials increase.

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3. My builder-developer says that I have no remedy for problems I am having with my home because they are not covered by my written warranty and the time to make a claim under that warranty is expired. What should I do?

When a builder-developer tells you what your legal rights are, remember that the builder-developer is not a lawyer, and that the builder-developer is viewing these issues through the lens of self-interest.

Homeowners' legal rights against those responsible for construction defects arise from many sources, and the written warranty that some builder-developers provide is just one of those sources. Among the many legal theories that homeowners might rely on are:

In addition, if the problem is due to the fault of someone in addition to or other than the builder-developer, you may be able to bring some of the claims described above against that person. These other parties may include a potentially liable subcontractor who fails to obtain the proper grade around your home, the engineer who specified an incorrect foundation system, or a material supplier who provides windows that leak, bricks that spall or shingles that blow off in moderate winds.

If the problem involves a "product," then recovery may possibly be obtained against the manufacturer of that product under Colorado's product liability laws or for violation of the federal Magnuson-Moss Warranty Act. Sometimes, your homeowners or other insurance policy, or a third-party "2-10" structural warranty, may cover a loss.

Even if the only claim available to you is contained in a written warranty, the builder-developer does not have the last word on whether you can recover under that warranty: the courts or an arbitrator usually decide this question. Also, just because your problem has continued beyond the warranty period does not necessarily mean you cannot bring the claim. If you gave notice of the problem during the warranty period and the builder-developer failed to resolve the problem, or if the builder-developer assured you the problem would eventually stabilize, or if the builder-developer made repairs that did not solve the problem, you may still be able to obtain relief under the warranty even beyond the warranty period.

In addition, standardized clauses in purchase contracts and warranty documents restricting your rights to just the written warranty may be void or of limited effect due to statute (i.e., written laws passed by the legislature), misrepresentation, or the failure of the remedies provided for in the warranty to provide any effective relief.  Colorado's Homeowner Protection Act of 2007 voids many contract disclaimers and liability limitations.

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4. My builder says that I am being too picky about the condition of my home, that no home is perfect. When does a problem become a "defect" and my builder become responsible to fix it?

Our experience has been that home owners are reasonable folks, but that if matters involving their home have reached the point where they feel the need to seek out a lawyer or consider filing a lawsuit, the problem is not trivial and probably involves a defect that demands investigation and professional consultation. In one case, the Colorado Court of Appeals said that a "defect" is something that spoils the appearance of or causes weakness or failure in an improvement to real property. Courts also have found that a defect is an inherent fault or flaw, or a want or absence of something necessary for completeness, perfection, or adequacy in form or function. Under Colorado's Defet Action Reform Act , a defect likely includes any constructed condition that leads to: (a) actual damage to real or personal property; (b) actual loss of use of property; (c) bodily injury or wrongful death; or (d) a risk of bodily injury or death to, or a threat to the life, health, or safety of, the occupants of the residential real property.

Colorado has not adopted a "bright-line" test for what sorts of construction defects may or may not be the subject of suit. However, any construction element (windows, roofs, floors, foundations, water systems, etc.) that is not reasonably constructed to serve its purpose probably will provide the basis for a claim. In the case of "common interest" condominium and town home developments, these construction elements may include development roadways, underground utilities and other, similar "common areas" and "common elements."

Construction defect claims generally fall into four, broad categories:

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5. I am not the original owner of my home. Do I have any remedies against the builder-developer for construction defects?

Yes, you very well may, as well as against others who may bear legal responsibility for the problems with your home, such as subcontractors, engineers and material and product suppliers. Colorado courts long ago rejected "privity" requirements with regard to many claims, that is, the requirement that that the owner of the home or condominium be a party to contract (i.e., in "contractual privity") with the person they are suing for damages due to construction defects. And, in some cases, even though you are not a party to the contract or warranty, the original owner's rights may have been assigned or are otherwise transferable to you under the law. Under the right circumstances, home owners may be able to assert misrepresentation and concealment claims even if they are secondary purchasers and never dealt with or spoke to the original builder or seller of their home, such as where the builder or seller fails to disclose important, unfavorable information about the homes construction or the soils underlying the home at the time of sale.  If you live in a townhome or condominium community, your homeowner association may have rights it can exercise on your behalf or for your benefit.

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6. I understand that home owners are allowed to recover triple damages against builder-developers for defects. Is this true?

Under Colorado's Consumer Protection Act, if you can establish by clear and convincing evidence that a prohibited deceptive trade, sales or advertising practice intentionally, willfully, fraudulently or knowingly caused you injury, you may be entitled to recover triple damages and attorney fees against the person or persons responsible for the practice. Changes in the law following passage of the Construction Defect Action Reform Acts of 2001 and 2003 now require home owners to allow their builder or developer "one last chance" to make things right. Unfortunately, if the builder or developer technically satisfies this "right to offer a cure" process, even though it does not fix the problem, it obtains complete immunity from treble damages under Colorado's Consumer Protection Act despite the fact it defrauded you in the first place.

Our law firm's philosophy is, however, that the most reasonable goal in a homeowner lawsuit is to obtain a recovery that makes the home owner whole, and that persons who are interested in pursuing litigation simply in order to secure triple damages are mistaken in their goals and are pursuing litigation for the wrong reasons.

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7. My builder tells me that if I do not like the way it is responding to my complaints, there is an arbitration clause in my purchase contract that requires me to arbitrate my claims, and that I have given up my right to a jury trial. Is this true?

This may be true, but arbitration before a neutral, professional and experienced arbitrator (preferably a former judge) may, under some circumstances, allow you to obtain a fair resolution of your claim. Unfortunately, too many arbitration provisions can result in a very unfair resolution of your claim.

Our firm has been very involved in trying to educate Colorado home owners and condominium owners about the pitfalls of some forms of arbitration and the use of some arbitration services. We believe that standardized arbitration clauses, requiring home owners to waive their right to a jury trial and their right to most avenues of appeal before the nature and extent of the problem with the home or condominium is understood, and often requiring home owners to submit their claims to an arbitration service that is biased in favor of builders and developers, are unconscionable.

Attorneys Ron Sandgrund and Scott Sullan of Sullan², Sandgrund, Smith & Perczak, P.C., have testified before Colorado's legislature against proposed anti-consumer and anti-homeowner legislation. They are working to support homeowner rights and due process legislation intended to minimize the evils of the current arbitration system in Colorado. If you have had an unsatisfactory experience with arbitration, we would like to know about it. Please e-mail us (law@vsss.com) your comments and indicate whether you would be willing to testify before the legislature on this issue if necessary.

Some of the more serious problems that have developed regarding arbitration include the following:

It is important that home owners and consumers can believe that whatever forum hears their grievances, those grievances will be taken seriously, that the laws of Colorado will be applied, and that the decision-maker will be fair and impartial. The current arbitration system is being distorted and manipulated, not necessarily maliciously, but due to the fact that business interests are better organized, more powerful, more sophisticated, and better financed than ordinary consumers. Firm attorneys Scott Sullan and Ron Sandgrund worked closely with state legislators in attempting to craft and pass the Arbitration Fairness Act in 1999. Although this legislation was defeated, attorneys Sullan and Sandgrund remained closely involved in the Colorado legislatures review and adoption of significant amendments to Colorado's Uniform Arbitration Act in 2004, giving voice to the needs and concerns of Colorados home buyers and other consumers.

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8. Every time I tell my builder's warranty department that I was promised something by the salesman who sold me the home and that promise has not been kept, the warranty manager says, "If it isn't in the limited warranty agreement, it's not our problem." Is this true?

"Integration clauses" are frequently hidden in purchase contracts making it difficult for home owners to obtain relief for misleading statements made to them by salespeople. These clauses are used by some unscrupulous builders or their sales people to allow them to say one thing, but to contradict what they said in the fine print of the written contract.  Colorado's Homeowner Protection Act of 2007 voids many contract disclaimers and liability limitations.

Colorado courts will not necessarily turn a blind eye towards such practices, and relief often can be found, sometimes under Colorado's Consumer Protection Act. An attorney can analyze your contract documents and the circumstances surrounding the misrepresentation or non-disclosure and help you determine whether the law allows you relief despite suggestions by your builder-developer to the contrary.

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9. A friend of mine said that in Colorado I only have two years to sue those responsible for construction defects. Is this true?

The time limits within which to bring a lawsuit (or demand arbitration) vary depending on who you are suing, the nature of the activity giving rise to your claim, and the legal theory you are pursuing. Some warranties and contracts have additional, and very strict, time limits for giving notice of a claim or for instituting suit. Colorado's "builder-contractor" statute of limitations and statute of repose are complicated and difficult to apply their application depends on the precise facts underlying your claim, when the problem became known, the nature of the problem, etc. There is almost never a simple answer to the question of what is the exact date before which you must file suit or demand arbitration or be forever barred from bringing a claim in Colorado due to construction defects.

The various deadlines for making a claim or filing suit should be explored with an attorney as soon as you recognize a problem. Special statutes of limitations may apply to homeowner association claims against builder-developers who appointed members to the board of directors of the homeowners association, and some of these time limits may be extended beyond when "declarant control" ends.

Because there are various laws which limit the amount of time within which certain kinds of claims must be filed in court, or with certain regulatory or administrative agencies, or within which written notice of a claim or demand for arbitration must be given as required by statute or contract, or else be forever barred, we urge homeowners to act promptly in finding a lawyer to help you out if you intend to pursue a claim. As to your builder-developer and its subcontractors and engineers, you may only have the lesser of two years from the date you, or any former owner, first noticed a problem with your home, or six years from the date of substantial completion of your home, to bring a formal claim against those you believe to be responsible for the problem. If the problem first arose during the fifth or sixth year following "substantial completion" of the home, you may have two years from that date to sue. Some courts have found that the date of "substantial completion" of the home is the same date the certificate of occupancy was issued, not later, such as when your home was first sold. It is possible that the lawyer you consult with may determine that a theory of recovery exists which may allow you to sue beyond these deadlines.

In addition, you may only have a year within which to file suit on some unique claims (for example, certain kinds of claims brought under Colorado's Common Interest Ownership Act ), and some claims against governmental entities require that a special notice of claim be delivered within six months of the date of the injury, damage or loss. In 2003, the Colorado legislature passed the Construction Defect Action Reform Act of 2003 ("CDARA II"). Firm attorneys Scott Sullan and Ron Sandgrund were significantly involved in shaping this body of laws in an effort to render it more even-handed and fair to home owners. CDARA II imposes a mandatory "Notice of Claim" procedure that home owners and builders must follow before a home owner or homeowner association can file suit on a construction defect. Because of the complexity of this new law, and the serious consequences that can occur if the Notice of Claim process is not properly followed, consultation with an attorney is advisable.

Colorado's Homeowner Protection Act of 2007 may void a builder's attempt to improperly shorten the suit limitation deadline.

For a more technical discussion of Colorados statutes of limitations, you can read the following law journal articles written by the firms attorney: Sandgrund & Sullan, "Statutes of Limitations and Repose in Construction Defect Cases Part II ," 33 Colo. Law. 67 (June 2004) and Sandgrund & Sullan, "Statutes of Limitations and Repose in Construction Defect Cases Part I ," 33 Colo. Law. 73 (May 2004).

For a more technical discussion of CDARA I and II, you can read the following law journal articles written by the firms attorneys: Sandgrund, Sullan, and Achenbach, "The Construction Defect Action Reform Act, " 30 The Colorado Lawyer 121 (Oct. 2001), Sandgrund and Sullan, "The Construction Defect Action Reform Act of 2003 ," 32 The Colorado Lawyer 89 (July 2003) and Sandgrund, Sullan and Seidman, "The Homeowner Protection Act of 2007," 36 The Colorado Lawyer 7 (July, 2007).

Be careful about claim and suit deadlines!

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10. What sorts of damages and other relief am I allowed due to construction defects in my home?

Depending on the legal theories you pursue, different recoveries or damages may be permitted.

Among the different kinds of money damages and other relief you may be able to recover are (although many of these recoveries have been lost or limited by changes in the law following passage of the Construction Defect Action Reform Acts of 2001 and 2003):

Included among the different kinds of equitable relief you may be entitled to obtain is rescission of the sale of your home, whereby purchase monies are returned to you and the home is given back to the builder-developer.

Changes in the law following passage of the Construction Defect Action Reform Acts of 2001 and 2003 now require home owners to allow their builder or developer "one last chance" to make things right. If the builder or developer simply participates in this "right to offer to cure" process, the builder or developer may obtain immunity from treble damages under Colorados Consumer Protection Act despite the fact the defect may not be adequately and permanently repaired and despite the fact the builder or developer may have defrauded the homeowner. Sadly, even if the builder ignores its customers complaints and fails to participate in this process at all, these new laws still deny all Colorado property owners rights and remedies they have benefited from for many decades.

Home owner and property rights representatives have joined together in an effort to restore the rights stripped away by CDARA II, seeking to restore the status quo and leveling the playing field between property owners and those builders who fail to construct real property improvements in a good and workmanlike manner.

For a more technical discussion of CDARA I and II, and the more recent Homeowner Protection Act of 2007, you can read the following law journal articles written by the firm's attorneys: Sandgrund, Sullan, and Achenbach, "The Construction Defect Action Reform Act, " 30 The Colorado Lawyer 121 (Oct. 2001), Sandgrund and Sullan, "The Construction Defect Action Reform Act of 2003, " 32 The Colorado Lawyer 89 (July 2003), and Sandgrund, Sullan and Seidman, "The Homeowner Protection Act of 2007," 36 The Colorado Lawyer 7 (July, 2007).

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11. Who has the right to make a claim against a builder-developer for a problem with a town home or condominium?

Generally, anyone who suffers a legal injury recognized by the law can sue those responsible for causing the injury. Exactly who can sue and for what kinds of damages depends on whether the individual unit or a common element has suffered damage, what steps are necessary to repair the damage to ensure it does not occur again, and the specific language of the homeowner's Purchase Contract and his or her association's governing documents, such as the Declaration of Covenants and HOA Bylaws.

Original and later owners of a home or condominium (including a townhome) generally all have rights of some kind under the law. Often, the homeowners association will join with individual unit owners in the suit; sometimes the homeowners association will sue on behalf of or for the benefit of the individual unit owners, particularly if an identical construction defect is repeated from one unit to the next, or if the defect affects a "common element" owned and used by the homeowners association and the individual unit owners. Careful analysis and investigation must be made into the nature of the problem, potentially applicable suit deadlines and the need for the joinder of individual unit owners and the homeowners association in one lawsuit.

Sometimes the Association is still controlled by the builder-developer. This factor can add another layer of issues that a lawyer must analyze because of the complicated legal issues that may arise under these circumstances.

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12. How do my rights differ if I am a condominium or town home owner rather than the owner of a single-family home?

In many ways, and sometimes significantly. This area of the law is very confusing. Some legal rights and claims may only be available to the condominium unit owner's homeowner's association, and not the unit owner himself or herself. On the other hand, other legal rights and claims may only be available to the condominium unit owner and not the association. And, sometimes, it is advisable for an individual condominium unit owner and his or her homeowners association to join together in a single lawsuit; in some cases, such joinder may be required by the court. Your lawyer needs to help you make the right choices as to who should bring suit and who should be sued if you are forced to file a lawsuit.

Attorneys Ron Sandgrund and Scott Sullan have written many articles relating to the rights of condominium and townhome owners. For a technical discussion of the tension between a condominium developers self-interest and its obligations to unit owners under the law, you can read the following law journal article written by the firm's attorneys: Sandgrund & Smith, "When the Developer Controls the Homeowner Association Board: The Benevolent Dictator?" 31 Colo. Law. 91 (Jan. 2002).

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13. What is a class action?

A "class action" is a lawsuit brought by a small group of people in their own name, individually, and in the name of other persons similarly situated, "representatively," such as on behalf of persons facing similar construction defect problems. When forty people join together in a lawsuit, this is not a class action. If two people join in a lawsuit, and sue on behalf of themselves and forty other people similarly situated, this is a class action.

While a lawsuit alleging "class action" claims can be filed based on general and still unproven allegations, a lengthy and complicated "class certification" procedure generally must follow, during which certification process proof supporting the factual and legal basis for the class claims must be presented to a Judge. Only if the Judge certifies the case as a class action can the class action claims proceed. There are both significant advantages and disadvantages to class action lawsuits. Every case must be evaluated on its specific facts before the decision is made whether to file a class action, as well as the later decision whether to seek class certification.

In 2005, Congress amended the country's class action laws to curb class action lawsuit abuses. Although these new laws were well intended and badly needed, they contain provisions that now can abused by lawsuit defendants. These new laws, coupled with Colorado's Construction Defect Action Reform Acts of 2001 and 2003, have made it more difficult for homeowners to join together in a class action. If a formal class action is not advisable, it may make sense for a large group of home owners or condominium owners in a neighborhood or development to get together and retain one law firm to represent them, sometimes known as a "collective action." Great cost-savings often can be achieved, and the strength of a group of home owners standing together against a builder-developer can be dramatic.

Unfortunately, many builders and developers now insert arbitration clauses in their contracts in an effort to destroy the ability of property owners to join forces in a class action or collective action. Adopting such a "divide and conquer" philosophy has proven very effective for the building industry. For other problems related to arbitration clauses, go to question 7.

Here are some links to class actions that may affect Colorado homeowners:

ABS Plastic Pipe: Many older homes may contain defectively manufactured plastic waste pipe from the mid 1980's that is prone to cracking and leaking.  See www.abspipes.com.

Cemwood Roof Shakes: Some of American Cemwood's imitation wood shakes may prematurely crack, swell and become discolored. See www.cemwoodclaims.com.

Colorado Slab-On-Grade Floor System Litigation:  In the mid- to late 1990's, Vanatta, Sullan, Sandgrund, Sullan & Smith, PC (now known as Sullan², Sandgrund, Smith & Perczak, P.C.) won a series of related, class action settlements against Colorado builders concerning the use of poured concrete, slab-on-grade floors in Colorado homes, particularly homes located over expansive clay soils that can exert thousands of pounds of pressure due to moisture building-up underground.  Some of these settlement programs have closed, others are still accepting claims.  For detailed information, see http://www.coloradomanagement.com/.

FireFree Roof Shakes: Re-Con manufactured roof tiles composed of 2/3 Portland Cement and 1/3 wood cellulose fiber that may prematurely crack, swell and discolor. See www.firefreeclaims.com.

Louisiana Pacific: The company site has basic information on a hardboard siding class action settlement: go to www.lpsidingclaims.com.

Masonite Siding and Shingles: This site has information concerning masonite hardboard, omniboard, and woodruff shingles class action lawsuits: www.masoniteclaims.com.

Oldach Tiltmaster 2000 and Casement 2010 Wood Windows (Colorado): Vanatta, Sullan, Sandgrund, Sullan & Smith, PC, now known as Sullan², Sandgrund, Smith & Perczak, P.C., brought this leaking windows case to a successful $34 million settlement.  The deadline for claim submissions was December, 2005 -- no more claims are being accepted by the court-apponted Claims Administrator.

Omega Sprinklers: For class action settlement information relating to the recall of these fire sprinklers, see www.omegarecall.com.

Polybutelene Plumbing (plastic pipes): Widespread reports of leaks in this usually gray plastic, water-supply piping led to a class action settlement. www.pbpipe.com.

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14. Will a lawsuit hurt my propertys value and make it difficult to sell my home?

A lawsuit intended to obtain money from negligent builders and subcontractors to fix construction defects should have no greater affect on property values than the existence of those defects already has had on property values since it is likely that the owner of a home or other real property is required to disclose to prospective purchasers the existence of known defects in the property, particularly "hidden" defects not readily detectable. In the case of a condominium owner, he or she may be required to disclose the existence of defects in other portions of their development even if they do not physically affect his or her home because all owners may share financial responsibility for the cost of repairing these defects. Such disclosure is just as likely to affect an owner's ability to sell his or her home as the existence of a lawsuit directed at getting those defects repaired. Some believe that a home owner who has or whose homeowner association has taken legal action to get home defects repaired has a more saleable home than an owner who has not taken these steps.

Colorado's Common Interest Ownership Act , which Act governs most condominium and other multi-family developments, requires additional disclosures.

Consultation with a competent real estate broker can provide additional insights into the answer to this question.

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15. What information should I be ready to provide if I decide to hire a lawyer?

If you are the owner of a single-family home, bring with you all paperwork relating to: the marketing and sale of your home; the closing on your home; any problems with or repairs to your home; all closing documents; warranty booklets and enrollment forms; any home inspection reports and property disclosure statements; your homeowners' insurance policy; all soils and engineering reports; all correspondence between you and the developer/builder and any contractors.

If you are an owner of a condominium or townhome, then in addition to the materials just described, also bring your homeowner association's Declaration of Covenants, Bylaws, and Rules and Regulations, and any correspondence between you and your homeowner association.

If you are a homeowner association board member, then in addition to all the materials described above, bring everything you have relating to the developers turnover of board control to the unit owners, as well as all board minutes pre- and post- turnover, and all correspondence with the developer-declarant relating to any construction defects.

If you are not the original purchaser of your home, then bring any paperwork the person you bought from gave to you; all your closing documents; and, any other documents that appear to relate to the problem at hand.

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16. I heard that Colorado has passed two Construction Defect Action Reform Acts. What do these laws say and how do they affect my rights as a home owner?

Changes in the law following passage of the Construction Defect Action Reform Acts of 2001 and 2003 have rewritten the rules of the game for builders, developers, contractors, design professionals, and home owners. Among other things, these new laws provide the following:

• Home owners are required to allow their builder or developer "one last chance" to make things right. Simply if the builder or developer "participates" in this "right to offer a cure," the builder or developer may obtain immunity from treble damages under Colorados Consumer Protection Act. Unfortunately, even if the builder committed consumer fraud during the original sales transaction, and even if the builder ignores its customers complaints after sale, these new laws strip Colorado property owners of rights and remedies they have enjoyed for many decades in Colorado if the builder or developer participates in this "right to offer a cure," despite the fact no repairs are made and insufficient money is offered to fix the problems!
  
  
• If the construction professional offers to repair the problem, he or she must provide the property owner a copy of the investigative report. However, the construction professional may or may not have obtained a complete and impartial report.
  
  
• If the construction professional offers to pay money to resolve the problem, the amount may not be sufficient to fix the problem (including its cause and any hidden damage), and acceptance of the offer may prevent the home owner from pursuing the matter further.
  
  
• The new law provides no guidance as to how a home owner should proceed if faced with a problem requiring emergency repair (e.g., basement floods, asbestos disturbances, fire losses, and toxic mold growth) without being accused of destroying evidence or improperly preventing the construction professional from repairing the defect.
  
  
• The duly-elected home owner association executive board is required to provide advance notice to its member owners regarding any suit to correct construction defects affecting four or more homes.
  
  
• The universe of construction professionals granted the protections of the new laws was expanded.
  
  
• The recovery of certain kinds of damages by home owners has been "capped" or, some instances, eliminated .
  
  
• Property owners are prevented from obtaining sufficient money damages to correct defects in their homes under some circumstances.
  
  
• The "actual damages" property owners may recover due to construction defects is limited.
  
  
• Certain negligence claims are barred where a construction defect is present (such as defective wiring) but the defect has not yet resulted in physical injury (such as the defective wiring resulting in a fire that burns down the house).
  
  
• The recovery of treble damages is flatly prohibited were the construction professionals consumer fraud results in bodily injury, such as house fire burn victim claims.
  
  
• The ability of large groups of home owners injured by a common defect to sue as a class action, even if such a suit is the only economical way to pursue such claims, has been eliminated under many circumstances.

Colorado's Homeowner Protection Act of 2007 (the "HPA") voids many contract disclaimers and liability limitations that attempt to deny homeowners their rights under CDARA I and CDARA II.

Attorneys Ron Sandgrund and Scott Sullan have authored leading articles discussing in detail the legal effect of these new laws. For a more technical discussion of CDARA I and II and the HPA, you can read the following law journal articles: Sandgrund, Sullan, and Achenbach, "The Construction Defect Action Reform Act," 30 The Colorado Lawyer 121 (Oct. 2001), Sandgrund and Sullan, "The Construction Defect Action Reform Act of 2003," 32 The Colorado Lawyer 89 (July 2003), and Sandgrund, Sullan and Seidman, "The Homeowner Protection Act of 2007," 36 The Colorado Lawyer 7 (July, 2007).

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17. Is there anything Colorado homeowners can do to themselves against the further stripping away of their rights due to special interest legislation backed by wealthy development and insurance company interests?

Yes. Non-profit groups such as Colorado HOME, HADD (Homeowners Against Deficient Dwellings), the Rocky Mountain Chapter of the Community Associations Institute (CAI) and COPIRG (Colorado Public Interest Research Group) continue to organize homeowners in an effort to slow or reverse the stripping away of their legal rights.

Homeowner Protection Act of 2007, House Bill 1338:  In 2007, homeowner advocates, led by Scott Sullan of this law firm, met with legislators, citizens and newspaper editors to answer their questions regarding the blanket waiver of legal rights that much of the residential building industry had been putting in home purchase contracts.  House Bill 1338 was introduced by a brave group of state representatives and senators in the face of powerful industry oppositon, so as to limit such waivers and to preserve for homeowners the basic, legal rights the building industry agreed to when it lobbied for passage of the Construction Defect Action Reform Act in 2003.  On April 20, 2007, Governor Ritter signed H.B. 1138 and The Homeowner Protection Act became law in Colorado.

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