Does the Board have a fiduciary duty to bring a claim if it is aware of construction defects?
The Board does not have a fiduciary duty to actually bring a claim, it has a fiduciary duty to consider whether it should bring a claim. That will involve consulting with the association’s attorney, hopefully an attorney that’s experienced with construction defect claims, and determining after those discussions whether it’s in the best interest of the association to go ahead and proceed with the claim. Typically the key issue is going to be, how serious are the problems? Are they something that the association can take care of themselves or whether they are going to need money in the form of either a special assessment or a settlement from the litigation?