What does our HOA board have to do before suing the builder over construction defects?

By OurHOA · General information · Revised October 27, 2026

The pre-suit steps for an HOA construction defect claim: deadlines, engineer reports, builder notice and owner votes under Texas, Florida and Colorado law.

Part of the HOA board handbook: vendors, projects and upkeep.

The short answer

When roofs leak or a retaining wall leans on property the association maintains, the claim against the builder usually belongs to the association. The board can bring it, but not right away. Texas, Florida and Colorado each make the association give the builder written notice and a chance to inspect and offer a repair before any suit. Some of them also require an engineer's report or an owner vote first. Skip a step and the court can pause the case, or in Colorado the owner vote can be void. The order that works: find the deadline, get an engineer, hire a construction defect attorney, send the statutory notice, and run any owner vote the law or your declaration requires. Rules vary by state and by your governing documents. This guide is education, not legal advice; have counsel before the board sends anything.

Find the deadline first

Defect claims run on two clocks. Limitations starts when the defect is found or should have been. Repose starts when construction finished and runs out whether anyone noticed or not. Florida, section 95.11(3)(b): four years, measured from the certificate of occupancy or completion, or from discovery for a latent defect. The outer limit is 7 years from the earliest certificate of occupancy or completion. When the developer built several buildings, each building has its own clock. Colorado, sections 13-80-102 and 13-80-104: two years after the physical signs of the defect were discovered or should have been. The outer limit is six years after substantial completion, with up to two more years if the claim arises in year five or six. Texas, Civil Practice and Remedies Code section 16.009: suit against a builder must come within 10 years of substantial completion, and section 16.008 sets the same 10 years for architects and engineers. Shorter limitation periods apply inside that window, so ask counsel for the date that controls your claim. The statutory notices toll some clocks, not all: Florida section 558.004(1)(d) says a chapter 558 notice does not toll repose. Put the earliest possible deadline on the board calendar and plan backward.

Get an engineer before a lawyer writes anything

A defect notice is only as good as the inspection behind it. Hire a licensed engineer or building envelope consultant to inspect, photograph, and write a report naming each defect, its location and the damage it causes. The notice is built from that report. In Florida, section 558.004(11) lets a case go to trial only on defects that were noticed, plus defects reasonably related to them, so a vague report becomes a narrow case. Texas condominiums have a specific rule. Under Property Code section 82.119, an association with eight or more units must get an inspection and a written independent report from a licensed professional engineer before suing or starting arbitration. The report has to identify the units or common elements involved, describe their present condition, and list repairs or changes made by owners or the association. Each party gets 10 days' written notice of the inspection and may attend. Once the report is done, it goes to every owner and every party, and the builder gets at least 90 days to inspect and correct before the board may notice the owner meeting. If the community just took over from the developer, this can double as the transition inspection. Our guide on what a new board should do after developer turnover covers collecting the plans, warranties and permits the engineer will want.

Give the builder notice and a chance to repair

Florida, chapter 558. Serve the notice at least 120 days before filing if the association represents more than 20 parcels, or 60 days otherwise. It must refer to chapter 558, describe each defect in reasonable detail, and give its location based on at least a visual inspection. For larger associations the builder has 50 days to inspect and 75 days to respond with an offer, a denial or a referral to its insurer. The association then has 45 days to accept or reject an offer in writing. Colorado, section 13-20-803.5. Send the notice at least 75 days before filing, or 90 days for commercial property, by certified mail with return receipt or by personal service. The builder may inspect within 30 days and may offer to pay or repair within 30 days after the inspection. Section 13-20-805 tolls the limitation and repose periods until 60 days after this process ends, if the notice went out before the deadline. Texas, Property Code section 27.004. Send the notice by certified mail, return receipt requested, at least 60 days before filing, with expert reports and photos. The builder gets a 35-day window for up to three inspections and 60 days to make a written offer. If the board thinks the offer is unreasonable, it has 25 days to say why in writing. Under section 27.004(e), turning down an offer the court later finds reasonable can cap the recovery at the value of that offer. Chapter 27 defines a residence to include condominium units and the common elements of a multiunit building, so a subdivision with only streets and a pond should ask counsel whether chapter 27 applies at all.

When the owners have to vote

Colorado, section 38-33.3-303.5. Before the board files, it mails every owner a notice calling an owner meeting 10 to 15 days after the mailing date. No quorum is required. The builder gets notice of the meeting date at least five business days before the owner notice goes out and is invited to speak and may offer a repair. The notice describes the defects, relief and risks, plus ten required disclosures, including the fee arrangement, a cost cap and warnings about assessments and financing. The suit needs approval from owners holding at least 65 percent of the votes, counted after excluding units owned by the developer or its affiliates, nonresponsive owners, and banks that do not vote. Voting ends 90 days after the mailing. Keep the verified mailing list and every ballot until the case ends. Florida, section 720.303(1). Before an HOA sues anyone over more than $100,000, it needs approval from a majority of the voting interests at a membership meeting with a quorum. Condominiums are under chapter 718 instead, so check with counsel. Texas condominiums, section 82.119. Approval from owners holding more than 50 percent of the total votes, at a meeting noticed at least 30 days ahead. The notice includes the engineer's report, the attorney's contract, expected costs, the likelihood of success, how the claim is funded, and a resale and refinancing warning. Someone outside the association's law firm must prepare and sign it. Read the declaration too. Many add their own preconditions or require arbitration, and Texas section 82.120 keeps an arbitration clause in force for claims about earlier construction even if owners later amend it out.

A sample Colorado timeline

Take a 48-unit townhome community where the roofs reached substantial completion four and a half years ago and three buildings now leak. Weeks 1 to 6: engineer inspects and delivers a report. Board hires counsel under a written engagement letter. Week 7: counsel sends the notice of claim by certified mail. The 75-day clock starts. Week 8: association mails the builder notice of the owner meeting date. Week 9: association mails the owner notice with the required disclosures. Week 11: owner meeting, held 12 days after the mailing. The builder presents. Voting opens. Weeks 11 to 22: board collects written votes and logs each follow-up with owners who have not voted. Week 18: the 75-day notice period ends. Board reviews any offer with counsel. Week 22 or later: once owners approve and no acceptable offer came in, counsel files. Your attorney may set a different order. The point: about five months of process has to fit inside the deadline.

Wording the board can use

A motion to start the process, without approving a lawsuit: "I move that the board retain [firm] under the engagement letter presented tonight to evaluate claims for construction defects in [the roofs of buildings 1 through 6], retain [engineer] to inspect and report at a cost not to exceed $[amount], and direct counsel to prepare the notices the law requires. No lawsuit or arbitration will be filed without the owner approval required by law and our governing documents." A short update for owners: "The board has hired an engineer to inspect the leaking roofs and an attorney to advise on a possible claim against the builder. State law requires us to give the builder notice and a chance to repair first, and [owners will vote before any suit is filed]. Please send photos and dates of any leaks to [address]." Our guide on how to hire an HOA attorney covers engagement letters and contingency fees.

Mistakes that cost associations their claims

Waiting on the builder's warranty desk. Emails with customer care stop no clock. Send the statutory notice on time even while repair talks continue. Repairing before documenting. Fix what is dangerous or causing new damage. Florida section 558.004(9) expressly allows emergency repairs. Have the engineer photograph and sample first, and keep removed materials if counsel asks. A notice that says "roof problems." List each defect and location. Anything left out may not reach trial. Miscounting a Colorado vote. Excluded units change the math; count as the statute says. Forgetting the side effects. A pending defect claim can show up on resale disclosures and lender questionnaires, and Colorado's required disclosures warn that it can make refinancing harder. Tell owners early.

Sources

These guides are general education for HOA boards and residents, not legal, tax, or financial advice. Rules vary by state and by your community's governing documents - check with a professional for your situation.

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