An association board knows about the difficulties that arise when attempting to collect assessments and fines due. A similar problem emerges when a declarant or developer transfers the property to the association and abandons its continuing duties. The association is then forced into bringing claims against the declarant to recover for defects, maintain common areas, and enforce any other remaining obligations.

            Mark L. Hankin addresses some of the issues related to a suit by an association against a declarant in the February 2009 issue of the Habitat. Mark L. Hankin, Brand New Board and Shoddy Construction: A Case Study, HABITAT, Feb. 2009. One such issue is the legal status of the declarant. The type of entity is a factor in determining who may be held liable as a declarant. In Hankin's example, the two partners facing potential liability were pointing fingers to each other. Such disagreements may be a distraction to the claim that may delay payment or repair. The association should focus on pursuing all parties possibly liable. 

            While a conflict among defendants may impede immediate remedy, defendants in disagreement may be helpful in resolving the liability issue. The more defendants blame each other, the more facts they reveal that determine the parties at fault. In addition, remember, many times all defendants are jointly and severally liable: any of them are liable for the entire amount.  

            As Hankin points out, litigation is usually necessary to resolve an association's claims against declarant. The conflict may last years and the resolution may only partially meet the owners' needs. In addition, recovery never includes legal fees.

            This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.