Why HOAs Should Hire an Attorney — Not the HOA Manager — to Investigate Construction Defects
When Red Flags Turn into Action
In a prior post, we discussed warning signs that may indicate construction defects — things like leaks, cracks, drainage issues, or mechanical failures. Once those red flags appear, the next step is crucial: don’t start hiring engineers or contractors yourself.
Instead, the homeowners’ association should first consult an attorney experienced in construction defect law.
Why? Because the way you handle the initial investigation can make or break the HOA’s ability to bring a claim later — especially when it comes to preserving confidentiality and the attorney work product privilege.
Why the Attorney — Not the Property Manager — Must Hire the Experts
When a property manager or board hires an expert (like an engineer or contractor) directly, anything that expert writes can be discoverable if a lawsuit is later filed. That means the developer or builder can demand to see those early reports – even if they’re unfavorable or preliminary.
By contrast, when the attorney retains the experts, those same communications and reports are protected as attorney work product.
This distinction is not just technical — it’s critical. Under California law:
Reports prepared at an attorney’s request, for purposes of evaluating potential claims or litigation, are privileged and confidential.
Reports prepared by or for the property manager or HOA (without counsel) are not privileged and can be used by the builder or developer later.
That’s why it’s essential that the attorney hires the experts directly and manages the entire investigation.
How the Process Typically Works
Here’s how a proper construction defect investigation should unfold:
Attorney Engagement: The HOA board retains a construction defect attorney.
Preliminary Review: The attorney reviews project documents, warranties, and maintenance records.
Expert Retention: The attorney – not the manager – retains qualified experts (engineers, architects, or general construction specialists).
Site Inspections: The experts perform inspections under the attorney’s direction and prepare confidential reports for legal review.
Strategy and Communication: The attorney uses those findings to advise the board on next steps — such as sending statutory notices under the Right to Repair Act (SB 800) or preparing a formal claim.
By channeling all work through counsel, the HOA preserves both attorney-client privilege and work product protection – meaning the builder cannot demand those materials later if litigation arises.
The Role of the Property Manager
The property manager still plays an important role. Managers are often the first to observe issues, coordinate with homeowners, and maintain records of complaints.
However, once defects are suspected:
The manager should stop hiring outside consultants or contractors to “inspect” the problem.
Instead, the manager should report the issue to the HOA board and help the board engage legal counsel.
This protects the HOA’s rights while allowing a coordinated, professional investigation led by the attorney.
What Can Go Wrong If You Don’t Involve Counsel Early
HOAs that skip this step often face costly consequences:
Loss of privilege: Early expert reports become discoverable by the builder.
Conflicting findings: Multiple contractors or consultants produce inconsistent reports that weaken the HOA’s credibility.
Statute of limitations issues: Without legal guidance, deadlines to file a claim under SB 800 or other laws may expire.
Increased costs: Repeating investigations later under attorney supervision wastes time and money.
Bringing in counsel early avoids all of these pitfalls – and positions the HOA to pursue repairs or recovery efficiently.
Bottom Line – When construction problems arise, property managers should not act alone. The HOA’s first call should be to a qualified construction defect attorney who can retain the right experts under the protection of the attorney work product privilege.
This simple procedural step can preserve confidentiality, protect the association’s legal position, and ensure that any investigation is done properly from the start.