HOA Construction Defect Claims in California

Last updated: October 2026

A board that delays investigating a suspected defect can lose the claim entirely. California allows ten years from substantial completion for a latent defect and four years for a patent one, and those periods run whether or not anyone has noticed the problem. Before suing, the association must work through the Right to Repair Act’s pre-litigation procedure and notify its own members. Bay Legal, P.C. advises California associations on investigating, preserving, and pursuing construction defect claims.

How long does the association have?

The ten-year outside limit at Code of Civil Procedure section 337.15 is the one that matters most, because it runs from substantial completion rather than from discovery. A defect found in year eleven is generally not actionable however well concealed it was.

The Right to Repair Act adds its own periods, which differ by building component — some considerably shorter than ten years. A board assuming it has a decade for everything is likely to find several categories already expired, and the components with the shortest periods are frequently the ones that fail first.

What must happen before the association can sue?

Two separate processes, and boards frequently know about one and not the other. First, the Right to Repair Act pre-litigation procedure at Civil Code section 910 and following: the claimant serves notice of the claim, the builder has defined periods to inspect, test, and offer to repair, and the association must allow that process to run before filing.

Second — and this is the one most often missed — Davis-Stirling requires the association to notify its own members before commencing a construction defect action, under the provisions at Civil Code section 6000 and following. The notice must contain specified information about the claim and the anticipated process.

A board that satisfies the builder-facing procedure but not the member-facing one has a procedural defect in its own action. It is also, separately, a governance problem: members who first learn of major litigation from a special assessment notice tend to become the members who challenge it.

What is the board obliged to do?

Investigating a suspected defect is not discretionary in the way boards sometimes assume. Directors owe fiduciary duties to the membership, and the components at issue are ones the association is obliged to maintain.

• Investigate on reasonable suspicion. Recurring water intrusion, balcony movement, or repeated repairs to the same component are the usual triggers.
• Preserve evidence. Photograph conditions before repair, retain failed materials, and keep maintenance records. Repairs made without documentation destroy the claim they were responding to.
• Obtain expert assessment of cause and scope. Defect claims turn on expert evidence, and an early assessment also tells the board whether a claim is worth bringing.
• Track the deadlines against substantial completion, not against discovery.
• Report to members and take the decision to pursue at a properly noticed meeting.

A board that lets a claim expire while deferring the decision has a problem that outlasts the defect. The membership funds the repair through a special assessment, and the question of why the claim was not brought in time follows.

Who can be liable?

More parties than boards expect, and identifying them early matters because each has separate insurance and separate defences.

• The developer or builder, under the Right to Repair Act standards and in contract.
• Design professionals — architects and engineers — for deficient design.
• General and subcontractors for workmanship, subject to their own licensing position, which the Contractors State License Board records.
• Material suppliers where a product failed.

Developer-controlled boards raise a distinct issue. Where the developer still controls the board during the transition period, decisions about whether to investigate defects are taken by the party who would be sued. Claims frequently surface only after member control, by which time part of the limitation period has run — and the transition itself is a point at which a compliance review is worth the cost.

How does this interact with reserves and assessments?

Directly, and in both directions. A defect repair the association funds itself comes from reserves or a special assessment. Where reserves are inadequate, the assessment is larger and more likely to be challenged — and if the board levies it as an emergency assessment on the ground that the expense was unforeseeable, the reserve study is the document produced against that finding.

A successful defect claim changes the arithmetic entirely, which is why the investigation decision and the reserve planning decision belong in the same conversation rather than in separate ones a year apart.

Who advises associations at Bay Legal?

Managing attorney Jayson R. Elliott leads the firm’s HOA practice. Lead litigation attorney Evan Livingstone heads the litigation group. The firm’s construction practice, including Stephan Moses and Jason Rose, handles construction and real estate litigation.

Bay Legal, P.C. serves associations statewide from offices in Palo Alto and Los Angeles.

Frequently Asked Questions

How long does an association have to bring a defect claim?

Ten years from substantial completion for a latent defect under Code of Civil Procedure section 337.15, and four years for a patent one under section 337.1. Both run from completion rather than from discovery, so a defect found in year eleven is generally not actionable however well concealed. The Right to Repair Act adds component-specific periods, several shorter.

What is the Right to Repair Act?

The framework at Civil Code section 895 and following, enacted as SB 800, setting construction standards for residential development and a mandatory pre-litigation procedure. The claimant serves notice, the builder has defined periods to inspect, test, and offer repair, and the association must let that process run before filing.

Do we have to tell members before suing the developer?

Yes. Davis-Stirling requires the association to notify members before commencing a construction defect action, with specified information about the claim and the process. Boards commonly satisfy the builder-facing procedure and miss this one, which creates a procedural defect in their own action.

What should the board do when a defect is suspected?

Investigate promptly, preserve evidence before any repair, obtain an expert assessment of cause and scope, track the deadlines from substantial completion, and take the decision at a properly noticed meeting. Repairs carried out without documentation destroy the claim they were responding to.

Who can be held responsible?

The developer or builder, design professionals for deficient design, general and subcontractors for workmanship, and material suppliers where a product failed. Each has separate insurance and separate defences, which is why identifying the parties early matters as much as identifying the defect.

What if the developer still controls our board?

Decisions about investigating defects are then taken by the party who would be sued. Claims frequently surface only after member control, by which time part of the limitation period has run. The transition to member control is a point at which an independent review is worth commissioning.

Related Questions

Does the association’s insurance cover defects?

Property policies generally exclude defective construction itself, though resulting damage may be covered. The distinction is frequently litigated and worth checking early.

Can individual owners bring their own claims?

For damage to their separate interests, potentially. Common area claims belong to the association, which is why coordination matters when both exist.

What is substantial completion?

The point from which the limitation periods run. It is defined by statute rather than by the developer’s marketing, and pinning it down is an early task in any claim.

Should we repair now or wait for the claim?

Document thoroughly, then make urgent repairs. Deferring necessary work to preserve evidence creates liability of its own if someone is injured.

Talk to a California HOA attorney

The ten-year limit runs from completion, not from discovery, and repairs made without documentation destroy the claim. To discuss a suspected defect, call the office nearest you or email intake.

Bay Legal, P.C. — serving California statewide

Northern California office

667 Lytton Ave Ste 3, Palo Alto, CA 94301

(650) 668-8000

Southern California office

3211 Cahuenga Blvd W Ste 212, Los Angeles, CA 90068

(213) 668-8000

Intake: intake@baylegal.com

Fax: (650) 963-0041

Website: https://baylegal.com

This page is general information about California law and does not constitute legal advice or create an attorney-client relationship. For advice on your specific situation, contact a licensed California attorney.