October 21, 2011

Transition By Condominium Associations: Focus of Engineering Investigation—Fiber Cement Claddings

Transition is often confusing for condominium associations run by Boards populated with unit owners who are not attorneys and who have no prior experience going through the process. Upon transition of control of the condominium association's board of directors from the sponsor-developer to the unit owners, a key responsibility of the Board is to engage the services of an engineer or architect to conduct an inspection of the common elements to determine if there are any deficiencies. One of the most important considerations for the Board in transition is spending the Association's money wisely when it comes to engineering investigations.

This blog is part of a series of articles designed to help condominium associations focus their efforts to investigate the condition of the common elements in a cost effective manner. This article focuses on investigations of buildings clad with fiber cement claddings.

Many condominium buildings are clad with fiber cement claddings that look like overlapping horizontal boards. Some fiber cement claddings are prefabricated panels. Fiber cement is a composite material made of sand, cement and cellulose fibers. It is important to understand how the designers of the buildings intended the fiber cement claddings to be installed. Fiber cement claddings are proprietary products produced by well established manufacturers whose installation instructions are readily available. Fiber cement clapboard siding is intended to be installed over weather resistant barrier (e.g, 15lb felt or Tyvek) and are designed to allow incidental moisture that gets behind the horizontal overlapping panels to drain out of the system. Fiber cement panelized claddings, by contrast, are sometimes installed as a face sealed barrier to water infiltration (whether they were designed this way or not). Like barrier EIFS, these face sealed systems depend entirely upon the face of the panels, flashings and caulk to resist water infiltration. Relying upon perfection of contractors in installing such barrier systems is, in our experience, an invitation to water infiltration problems a few years down the road.

An experienced engineer or architect can look at a building and see deficiencies in the installation of fiber cement overlapping horizontal boards and panels. They normally look for missing or improper flashings, deteriorated or missing sealants and visible evidence of water infiltration inside buildings clad with these systems. Upon completion of visual inspections, experienced engineers typically use pin-type moisture meters (see www.lignomatusa.com for example) to probe the moisture content of the sheathing and framing under the fiber cement claddings. If the probes are inserted into wood and the reading is more than 20%, that typically is viewed as an indication that damage is beginning. If the reading exceeds 30%, that means the sheathing and framing are damaged and must be replaced. If the sheathing and framing are gypsum or oriented strand board ("OSB"), the acceptable level of moisture content in the wood is even lower than it is for plywood.

What the Board needs to understand is that it should focus its investigative efforts and resources on documenting the extent to which water is infiltrating inside the building and damaging sheathing and framing. As fiduciaries and as a matter of good common sense, the Board should be doing this. However, there is a practical reason why this needs to be the focus of the Board's engineering investigations. The sponsor-developer is almost certainly an LLC or corporation with no assets once the last unit is sold. The subcontractors who constructed the common elements are also very likely to be small companies with no assets of any significant value. Therefore, the only way the Association is getting paid for the deficiencies you find in the construction of the common elements is through insurance policies insuring those responsible for the deficient construction. Analysis of those policies is beyond the scope of this article. For purposes of this discussion, what the Board needs to understand is that the insurance will often not cover your claim unless your engineers/architects can show proof of damage to sheathing and framing. You need to understand this and direct your engineers/architects to focus their investigations on finding this damage.

Elevated levels of moisture in the sheathing and framing under the fiber cement claddings can be caused by many conditions. Missing or improper flashings and open sealant joints are among the common and visibly obvious causes of water infiltration. Others that are not visible without invasive inspection are weather-resistant barrier that is lapped backwards (ie, instead of being installed from the bottom up, it is installed from the top down so the water runs behind the paper), failure to properly incorporate the weather resistant barrier into the flashings, and sealing up the bottom of a drainable system so water cannot escape. Instead, it works its way inside the walls. Determination of the causes of the damage should be done by an experienced engineer or architect who carefully documents the test methodology and results with photographs and video. Samples of particularly nasty-looking damaged wood products should be bagged and marked by date, location and the name of the person who took the sample. This is necessary to enable counsel to use this evidence at trial if that becomes necessary.

In hiring experts to do this investigation, we recommend to our clients that they use engineers and architects who have substantial experience testifying at deposition and at trial. Being a litigation expert is very difficult, high pressure work. Errors made by the expert in conducting or documenting the field investigation can be damaging, sometimes fatal, to your case. Why should you pay your hard earned money to train an inexperienced expert how to follow the rigorous procedures needed to document and prove your claims when there are plenty of experts out there who have done this for many years and are already very familiar with what is expected of them by counsel and the courts?

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October 3, 2011

Transition by Condominium Associations – Focus of Engineering Investigation - Part 2

This is part two of a series of posts discussing Transition by Condominium Associations: Focus of Engineering Investigation. You can read the first post online here.

How do engineers find this moisture damage without tearing off all of the brick and cast stone? They use moisture probes, which are inserted through the mortar joints in the brick and cast stone and into the sheathing and framing. These probes measure the amount of moisture inside the sheathing and framing. If the probes are inserted into wood and the reading is more than 20%, that typically is viewed as an indication that damage is beginning. If the reading exceeds 30%, that means the sheathing and framing are damaged and must be replaced. If the sheathing and framing are gypsum or oriented strand board (OSB), the acceptable level of moisture content in the wood is even lower than it is for plywood.

Elevated levels of moisture in the sheathing and framing under the brick and cast stone can be caused by many conditions. Missing or improper flashings, blocked weep holes and open sealant joints are among the common and visibly obvious causes of water infiltration. Others that are not visible without invasive inspection are weather-resistant barrier that is lapped backwards (i.e. instead of being installed from the bottom up, it is installed from the top down so the water runs behind the paper), failure to properly incorporate the weather resistant barrier into the flashings, and clogging of the air cavity behind the brick and cast stone so that the water cannot run down the weather resistant barrier and out. Instead, it works its way inside the walls. Determination of the causes of the damage should be done by an experienced engineer or architect who carefully documents the test methodology and results with photographs and video. Samples of a particularly nasty-looking damaged wood products should be bagged and marked by date, location and the name of the person who took the sample. This is necessary in order to enable counsel to use this evidence at trial if that becomes necessary.

In hiring experts to do this investigation, we recommend to our clients that they use engineers and architects who have substantial experience testifying at depositions and at trial. Being a litigation expert is very difficult, highpressure work. Errors made by the expert in conducting or documenting the field investigation can be damaging, sometimes fatal, to your case. Why should you pay your hard earned money to train an inexperienced expert how to follow the rigorous procedures needed to document and prove your claims when there are plenty of experts out there who have done this for many years and are already very familiar with that is expected of them by counsel and the courts?

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September 28, 2011

Transition by Condominium Associations – Focus of Engineering Investigation

Transition is often times a confusing issue for condominium associations run by Boards populated with unitowners who are not attorneys and who have no prior experience going through the process. Upon transition of control of the condo association board of directors from the sponsor-developer to the unitowners, a key responsibility of the Board is to engage the services of an engineer or architect to conduct an inspection of the common elements and building design to determine if there are any deficiencies. One of the most important considerations for the Board in transition, is spending the Association’s money wisely when it comes to engineering investigations. This is the first in a series of articles designed to help condominium associations focus their efforts to investigate the condition of the common elements in a cost effective manner. This first article focuses on investigations of builds clad with brick and cast stone.

Many condominium buildings are clad with brick and/or cast stone. It is important to understand how the designers of the buildings intended the brick and cast stone systems to be installed. The construction drawings typically have details showing at least the rudiments of the design intent for installation of the brick and cast stone. Brick and cast stone are porus, and therefore, most designers inted for there to be a weather resistant barrier wrapped over the framing sheathing of the building before the brick and cast stone are installed.

That weather resistant barrier is usually 15 pounds felt paper or Tyvek. Typically, there is a 1 or 2 inch air cavity between the weather resistant barrier and the brick or cast stone. This, coupled with the flashings installed at key locations, allows water to drain out of the system through weep holes in the brick and openings at the bottom of the system.

An experienced engineer or architect can look at a building and see deficiencies in the installation of a brick/cast stone system that may lead to water infiltration inside the wall cavity that could damage the sheathing and framing under the masonry cladding. They normally look for missing or blocked weep holes, missing or improper flashings, deteriorated or missing sealants and mortar in joints in the system. Efflorescence (a white deposit on walls caused by salts in the materials leaching out through exposure to water) is a possible indication that water cannot escape through the weeps and flashings and instead is forced to work its way out through the face of the brick or cast stone. If this is true, it is also possible that the water is working its way back inside the building.

What the Board needs to understand is that it should focus its investigative efforts and resources on documenting the extent to which water is infiltrating inside the building and damaging sheathing and framing. As fiduciaries, and as a matter of good common sense, the Board shuld be doing this. However, there is a practical reason why this needs to be the focus of the Board’s engineering investigations.

The sponsor-developer is almost certainly an LLC or corporation with no assets once the last unit is sold. The subcontractors who constructed the common elements are also very likely to be small companies with no assets of any significant value. Therefore, the only way the Association is getting paid for the deficiencies it finds in the construction of the common elements is through insurance policies insuring those responsible for the deficient construction.

Analysis of those policies is beyond the scope of this article. For purposes of this discussion, what the Board needs to understand is that the insurance will often not cover your claim unless you can show proof of damage to sheathing and framing. You need to understand this and direct your engineers/architects to focus their investigation on finding this damage.

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July 6, 2009

Transition Analysis for Condominium Associations

Donald B. Brenner, Chair of Stark & Stark’s Construction Litigation group, interviewed Ron Wright, Chief Operating Officer of R.V. Buric Construction Consultants in a four-part video series. In this first installment, Mr. Brenner and Mr. Wright discuss transition analysis for condominium associations and how building forensic investigations are conducted. The interview includes a discussion on what is included in a building forensic investigation, including the evaluation of common elements of a building, when field investigations should be conducted, when to conduct a moisture reading survey and what elements are included in a forensic investigation’s final report.

Legal Briefs on Construction Litigation: Transition Analysis for Condominium Associations from Stark & Stark on Vimeo.

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March 7, 2007

Fire Code Violations As A Transition Item

Condominiums must be constructed in accordance with at least the minimum standards of the building code in effect when the construction was approved. Whether that code is the old BOCA Code or the new International Residential Code, there are fire sub-codes that must be complied with. One of the most important requirements of those Codes is the requirements for fire wall assemblies. These include fire walls and draft-stopping. Fire walls are typically constructed between two condominium units. They are designed to slow the fire for one or two hours --depending upon the required rating of the fire wall assembly--so that people have time to evacuate and the fire department can have a chance to put out the fire before it spreads.

When multi-story condominium buildings are constructed, it is usually necessary to vent plumbing and HVAC pipes from the first floor up through the interior of the building and out the roof. When the plumber or HVAC contractors install their pipes, they either make holes or use holes cut by other contractors so they can run their pipes up through the building and out the roof. In a similar way, electricians run conduits through the inside of the building and then up through the roof, especially where there are roof-mounted HVAC units that have high-voltage wiring that must be installed by the electrical contractor. Draft-stopping is installed in these holes to stop the flow of air throughout the inside of the building. Otherwise, if there is a fire, the holes act like the flue in a chimney and conduct air that fans the flames and exacerbates the spread of the fire.

Many times associations treat claims relating to fire assemblies and draft-stopping as throw-away claims and negotiate them away in exchange for other considerations. This is a mistake. We have handled several matters where fires broke out and were seriously exacerbated by the lack of proper fire wall assemblies and draft-stopping. The association should recognize that these claims are life-safety issues that should be treated as serious , valuable claims. As fiduciaries, the Board members should bear in mind that they have a duty to protect the lives and safety of the unitowners and that this a paramount responsibility. Developers may argue that there is no consequential damage (ie, damage to other property) and therefore there is no insurance coverage. This is a ridiculous argument. While the insurance analysis is complicated, the carrier for the developer should not be able to get away with denying coverage on the theory that it has to wait until there is a fire and people die or property is destroyed before they have to cover the claim. If you have any questions about this, please contact us.

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