Defective Construction Dispute Resolution
Your new home has cracks in the walls, the roof leaks and the doors and windows don’t close. You call the builder and they rush out only to look at the property and say, “Well your landscaping caused the problem. We will fix the cracks even though we don’t have too because we pride ourselves on customer service.” They perform repairs to the walls and adjust the window and leave. You call your landscaper and he tells you that there is no way the landscaping could have caused the issues since it is just colored rock. Then 6 months later the cracks start showing up again. You think the sky is falling and the builder says it’s not our fault and the battle begins.
In my line of work I see problems with homes on a daily basis. Some are easy to fix and only on rare occasions is it cheaper to tear down and start over than to repair.
There are hundreds if not thousands of attorneys that practice construction law and there are almost as many (so called) experts. These attorneys and experts are able to point out what’s wrong with the home (so are you, that is why you called them) however, many of these self proclaimed professionals are inexperienced when it comes to determining the cause of the damage and what needs to be done to repair the home.
There are some builders that will take the initiative and try to find the problem but with the residential construction market crashing, many simply don’t have the money for repairs. So your home doesn’t get fixed or only gets patched and the contractor goes away. When the problem returns you look for professional help. You hire an attorney and/or a construction expert. The attorney sends a letter to the builder spelling out all the defects. The builder turns the case over to their insurance company and the insurance company contacts their attorneys. Then after a few letters are exchanged the builder’s inspections are performed by their team of experts. The battle turns into what law is applied and how that law is interpreted instead of what is wrong, how do we fix it, who is responsible and how much will it cost.
At this point I feel I should point out that the only people that make money in lawsuits are the attorneys and the experts. Typically both sides end up paying for these services out of pocket and while you can always ask for attorney and expert fees and costs in a lawsuit, my experience is you rarely recoup 100% of those costs even if you win.
The truth about the attorneys and experts is many of them help each other make money. Since the attorney typically recommends the expert, some of the experts attempt to, shall we say, view things differently. The plaintiff’s expert must have scratched glasses because everywhere he looks he sees cracks while the defense expert looks at the ceiling and then states he didn’t see any evidence that the foundation has moved and he saw no cracked floor tiles. Usually the truth is somewhere in the middle. (Recently a local engineer stated that even though the floor in a building had sunk 7 inches, it wasn’t moving when he looked at it so it is no longer a problem.)
The fact is these types of experts don’t help the case they slow it down and that, along with the attorneys bickering, results in increased costs. The builder’s insurance company pays then increases their fees the following year and the builder has even less money. This is one of the many problems with builders using the insurance company is their own persona warranty company
Good News: Not all builders, attorneys or experts behave that way. I have had the pleasure of working on the opposite side of some experts that actually know what is wrong and want to see the home repaired properly. This really is a win win. The home owner gets the home fixed, and the builder is able to salvage their reputation. (Not to mention the attorneys and/or experts get paid.)
Both sides can and should do several things to help control costs.
Photo document everything. I don’t care if it is the foundation steel or the cracks in the walls. Use a measure of some kind. If you don’t have a tape measure simply place a dollar bill net to the defect you are photographing for a size reference. Take several photos of everything from different angles and document the day the photo was taken and by whom. These photos can reduce the number of trips to the property and if taken during construction or repairs, may prevent, or reduce the amount of destructive testing that needs to be performed.
Interview your team. Find out what their experience is and what type of success they have resolving the issues. (This is different than settling the case). What other experts do they know and work with? Have they worked on other cases like yours? What are their fees and how do they bill?
Try to find a construction expert that will work with both parties to resolve the issue before you hire the attorney. If you are going to hire an expert anyway, why not give them the chance to work with both parties to resolve the issue first. If they are successful, you saved the attorneys fees, if they are not, you will already have the information needed so it can expedite the process.
Find someone that can put the pieces of the puzzle together.
Have the home professionally inspected before you purchase it. Take photos of the entire home interior and exterior and save the photos with your inspection report. If the damage existed when you bought the home, it will be documented, if it occurs after the purchase, that will be documented s well. Gathering evidence is one of the most expensive costs in a case. Taking photos or video of the entire home during construction, at the time of purchase, at the time of any repairs, and any other time can help your case and help keeps costs low.
For more information feel free to contact us.
Scott Warga, is the Qualifying party for ACSI American Construction Specialists and Investigations LLC,(ROC216772) a dual licensed residential and small commercial contractor. He is also a qualified home inspector certified by the Arizona Board of Technical Registration (#38062) and was appointed to the Arizona Board of Technical Registration’s Enforcement Advisory Committee. He has 9 years construction experience and has performed residential and commercial property inspections for over six years. He has specialized in forensic inspections, investigating failed, damaged and defective construction for over 4 years. He is a member of the American Society of Home Inspectors, (#205826) and currently sits on their board of directors. Scott is also a member of the International Code Council (#5095644). He has been an instructor of home inspection at Mesa Community College and Arizona Sun-Tech Home Inspection School. He is an instructor for Inspection Training Associates, a Kaplan Professional School. He has served an District Chairman & Vice President for the Arizona chapter of the American Society of Home Inspectors and an approved instructor for both them and the Arizona Department of Real Estate.