Don’t Love Thy Neighbor’s Construction Project Damaging Your Building? An Overview of Potential Claims and Remedies.

A new, neighboring building is being constructed, or an existing adjacent building is undergoing renovations, which poses the risk of causing, or actually causes, damage to your condominium association during the process. Here is an overview of potential damages, remedies, and solutions regarding neighboring construction issues.

 

Damages caused by neighboring construction projects may include:

 

  • Overspray of concrete, stucco, and paint
  • Paint splatter
  • Falling or detached stucco, concrete, and other components or debris
  • Structural damages, which can include, cracking or foundational damage to your property as a result of vibration from equipment and pile-driving in the neighboring construction
  • Excessive dirt and debris damaging landscaping
  • Damages resulting from neighbor’s failure to take precaution, including failure to install protective netting, which may protect against loose nails, concrete, dust, and debris damaging your association’s building, glass/windows, landscaping, or resident/guest vehicles (if outside or exposed parking)

 

Your aggrieved condominium association damaged by a nearby or neighboring construction project may bring claims against the neighboring property’s owner (e.g. a developer, an existing neighboring condominium association, or a private owner), and may also have potential claims against the builder/general contractor, design professionals, and subcontractor(s) performing the scope of work responsible for the damage.  

 

Upon notice or commencement of a neighboring project, your condominium association should attempt to potentially prepare for and protect itself against potential damage, to the extent possible. 

 

Associations should begin thinking about potential claims that may arise, and, if possible, potentially explore the following mitigation and claim preparation efforts:

 

  • Before or during the construction project, your association should employ experienced condominium and construction attorneys, to attempt to negotiate a contract with the neighboring owner or developer whereby the neighboring owner or developer agrees to repair or restore any damage to your association caused during the neighbor’s project.  If the neighboring owner enters into a contract with such obligations and fails to perform same after damage occurs, your association may have a claim for breach of contract in addition to claims for negligence against the neighbor for construction-related damage to your association’s property.
  • Review and update your association’s maintenance records and take photos/videos of your property before, during, and after the construction project. 
  • Review your association’s policies and coverages.
  • The association may potentially hire independent consultants before or during the neighboring project, which may include hiring construction or engineering consultants to evaluate whether the neighboring property is taking prophylactic measures (such as protective netting) and known industry standards appear to be met. This may also include hiring seismic testing companies, which measure vibrations of the nearby construction and determine if the intensity or strength can damage your property.

 

Further, a condominium association may also submit a claim with its own insurance carrier for potential construction-related damage caused by the neighboring project. Your condominium association should notify its insurance company once any such potential damage starts to appear and comply with policy terms. If the carrier denies coverage which is owed under an existing policy, the association may potentially have claims against its own insurer for breach of contract.

 

The above is not exhaustive as to the potential claims and remedies available to associations in the event nearby construction causes damage to association property.  It is important for associations to consult with experienced condominium and construction attorneys to fully explore all potential claims, remedies, and means of recovery, as well as to discuss potential alternative mitigation efforts. To learn more, please contact Lauren Fallick at lfallick@haber.law for more information or to schedule a consultation regarding such neighboring construction issues.

 

About the Author: Lauren Fallick concentrates her practice in the areas of construction law and litigation, complex commercial and business litigation, insurance coverage disputes, and real estate litigation. She represents and counsels business and property owners, community associations, real estate developers, and commercial landlords and tenants in disputes relating to the design, development, and construction of commercial, residential, and mixed-use real estate.