Some clients of mine recently bought a house that had a lot of work done prior to it being sold. I am doing a lot of upgrades to the place and I’m finding that a lot (if not all) of the work done prior to the sale was atrocious, e.g. covering rot with Bondo, caulk and paint. Today we discovered leaks on decks over living spaces. They have what may be Gaco on the existing deck with a deck drain which has been incorrectly installed and water is peeing through to the room below. My question is – do the new owners have any recourse? Can they call the original contractor out to take care of the problem (it was done less than a year ago) even though it was the previous owner that contracted with them?
Thanks
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They can try. Nothing like this is black and white, and based on the quality of work you describe I suspect the contractor isn't going to fix things just to preserve his "good name".
A question (for the courts, most likely) would be whether the previous owners knew of the defects that had been covered up and were therefore complicit in concealing them from the buyers. If so, they could potentially be held liable.
If the repair work involved is more than, say, $10K then probably a lawyer should be consulted.
'Apparantly' the previous owner (incidentally also the original architect) has lost his marbles, how convenient. He'd probably say he knew nothing about it.
Must be something in the water. Apparently there is an inspector worried about conductive concrete floors similarly affected
If there is any real money evolved I would contact a attorney that is familar with real estate and construction law.
There are potentially 3 different areas to go after.
1) Real estate disclosure laws.
2) construction defect laws.
3) Architect errors.
And this can be tricky. In some states the HO has to notify the orginal contractor and give then a chance to fix the problem.
William the Geezer, the sequel to Billy the Kid - Shoe
as far as the bondo fixing the rot,don't know where it's,can't be structural,but other than that i think you could say that its a proper repair.
the sell it to repair wood,thats going to be pretty hard to beat in court.i've seen ads advertising to repair rotted porch post????????
the older i get ,
the more people tick me off
Not when he leaves most of the rot in place. If you're going to fix something like that then at least dig out the rotten stuff first. If I remove the Bondo/caulk then the wood below is either dust or wet.
Incidentally these are all decking handrails outside, and lots of them.
what was the agreement between the buyer and seller? Was it in the sales contract?
It's usually better if the buyer negotiates the price down off the sale, then the buyer does/contracts the repairs themselves thereby having control over the quality.
That would be the best way in my opinion.
The problem I've seen is that some buyers look at problems and think i can fix that no problem.
So they really underestimate how much work is involved.
Having a "can do" attitude is great as long as you get the cost close.
Most people don't."There are three kinds of men: The one that learns by reading, the few who learn by observation and the rest of them have to pee on the electric fence for themselves."Will Rogers
Depends... I am on my way out this AM to do some repairs for a home seller. The list of repairs was drawn from a home inspection and made an addendum tot he contract. My invoice/receipt becomes part of the signed legal package.
I have been called back by new owners before, but it never ended up being anything I had touched. Some felt that I was warrantying the whole house, just cause I had walked through it.
As someone said, depends on your state's disclosure law. What did the owner know and was he trying to hide it? Did he try to legitimately repair it but used a cheap/bad contractor?
I reckon he didn't want to put much money into it as he was losing money on the sale anyway. He probably knew a lot of the work to be done was going to be a half assed attempt and would 'hide' the underlying problem.
It depends a lot on whether or not the problems were easily visible at the time of sale, or whether the buyer would have been required to do invasive inspection (ie: demolition) to become aware of them.
If the second case--which is what it sounds like from your description--then it's what's called a 'hidden vice', and a new buyer has a certain number of years to throw these back at the seller, depending on the jurisdiction. Here, the period is 7 years.
My guess is that your clients will need to sue the seller for hidden vices not disclosed in the contract, and it will be the seller who will turn around and interplead the contractor who did the substandard work.
Dinosaur
How now, Mighty Sauron, that thou art not brought
low by this? For thine evil pales before that which
foolish men call Justice....
Was there a pre sale inspection? If so, inspector (and their insurance co) may have a liability.
Surely, if a contractor performs work that is substandard (regardless of wether the seller knew this at the time or not) he should be held liable for his work even if the house is sold as is. The deck didn't leak at the time bevause a) it wasn't inspected for leaks, b) it didn't rain c) it looked okay. So the leak didn't manifest itself until the rain came, isn't this a hidden defect that the buyer couldn't reasonably be expected to discover at the time of purchase?
Yes. That is the key to the situation, because it makes the seller and/or his agents, liable to the buyer for the cost to fix this hidden vice.
Naturally, the seller won't want to pay this out of pocket, so he will turn around and sue the contractor. Often, it is possible for him to 'interplead' against the contractor, bringing him into the same lawsuit as a third party.
The question about the contractor isn't whether he is liable--if he did substandard work, he is responsible for correcting it--it is to whom is he liable. In this case, it appears that his first liablity is to the seller.
However, the seller is still on the hook to the buyer even if the contractor has disappeared or gone belly up. That is not the buyer's problem because his contract was not with the building contractor, it was with the seller.
Dinosaur
How now, Mighty Sauron, that thou art not broughtlow by this? For thine evil pales before that whichfoolish men call Justice....
"Yes. That is the key to the situation, because it makes the seller and/or his agents, liable to the buyer for the cost to fix this hidden vice.Naturally, the seller won't want to pay this out of pocket, so he will turn around and sue the contractor. Often, it is possible for him to 'interplead' against the contractor, bringing him into the same lawsuit as a third party."If was sold As Is and you can't prove that the seller knew that there where those defects you don't have any action against the seller.But depending on the wording of the contractors contract and/or state law the contractor might be warranting the building and not the person that gave him the contract (the seller).And in some cases the state law give the contractor the first option of making the repairs.And I believe that there was some possibility that an architects specs might have in error. And that would be a whole different set of liability laws.Thus, as I said he really needs to get an attorney that is familar with construction defects and realestate to review this.
.
William the Geezer, the sequel to Billy the Kid - Shoe
Agreed, if the contract of sale specified 'as is'the buyer could be stuck. I don't remember what, if any, sales terms the OP mentioned.
However, some jurisdictions may exclude hidden vices from 'as is' RE sales contracts by statute. And you are correct: "Only her hairdresser knows for sure." He needs to get a local attorney.
Dinosaur
How now, Mighty Sauron, that thou art not broughtlow by this? For thine evil pales before that whichfoolish men call Justice....
Unless you can find out the agreement between the seller and contractor... you are wasting time trying to get the contractor to correct substandard work. It's possible substandard was the agreement.
Edited 10/15/2009 5:19 pm ET by sledgehammer
How can sub standard possibly be the agreement? Laws require work to be of a certain standard, at minimum to serve the purpose for which they were intended. If this were to be the case then I'm guessing it should have been in the disclosures which would put the liability on the owner and/or sellers agent.
How can sub standard possibly be the agreement? Laws require work to be of a certain standard, at minimum to serve the purpose for which they were intended.
The law only sticks its nose in if the parties get into a pissing contest about something and take it to court.
Last year, a client told me, 'Look, I'm selling this mobile home, so I don't want to pour a lot of dough into it. Just jack up that deck and stick in some posts or concrete blocks or something under there to level it out.'
So, that's what I did. But, when I sent him the bill, it contained a disclaimer, explaining that I had followed his instructions and made an 'emergency repair' and that the deck was temporarily safe to walk upon...but that the repair could not be considered permanent and the deck would very likely sag again after another freeze-thaw cycle. He acknowledged that in writing, so I'm covered if the eventual buyer (it hasn't sold yet) ever tries to come back to me...but unless he discloses in the sale contract that the deck foundation isn't up to par, he is not--and he knows it: He's a lawyer specialising in real estate contract law.
Dinosaur
How now, Mighty Sauron, that thou art not broughtlow by this? For thine evil pales before that whichfoolish men call Justice....
I've never heard of a lawyer who lives in a trailer park.
I've never heard of a lawyer who lives in a trailer park.
This is not in a trailer park; it's a mobile home installed permanently on a lakefront lot. Been there since about '75. The property is by now worth 50 or 75 times what that old forty-footer is.
Even so, he doesn't live there; they bought it as a combination vacation chalet/flip property. (His wife's a lawyer, too.)
May have waited a bit too long to try to flip it, tho.
Dinosaur
How now, Mighty Sauron, that thou art not broughtlow by this? For thine evil pales before that whichfoolish men call Justice....
"I've never heard of a lawyer who lives in a trailer park."There's probably a joke there someplace, but it also says your experiences are limited.
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Here in Maryland we have lots of laws and unless the work is covered by permits and inspections anything the contractor does at the customers request has nothing to do with your house purchase. Heck if a customer asked me to paint a dirt floor, I inform them of their insanity and they still insist.... am I somehow legally liable?
You are trying to prove the contractor is the one at fault here and without a whole lot of information it appears you do not have... Just trying to stop you from wasting alot of time and effort.... but just like painting dirt the decision is ultimately yours. ;-)
Our previous home had questionable work.
The owner was a lady whose husband had passed away from cancer. The pest control found alot of repair work adding up to $4,000 form the termite/pest company. Some of it was structural.
They wanted to hire someone else and I was OK with it as long as the person was licensed and that was written into the contract
The owner wound up hiring the agents son(40 yr old +/-) and he wasn't licensed. All he did was cut everything out and cover it up. He charge around $1500. The pest company signed off on the work
I was in Wash finishing up the previous home so I never saw the work until after we closed escrow. At that point, I blamed the home owner, agent, the broker(the agents daughter), the "repairman" son and even the pest company.
I should have persued this but at that time, I just didn't have the energy to. Less stressful to do it myself.
"Our previous home had questionable work.
The owner was a lady whose husband had passed away from cancer. The pest control found alot of repair work adding up to $4,000 form the termite/pest company. Some of it was structural.
They wanted to hire someone else and I was OK with it as long as the person was licensed and that was written into the contract
The owner wound up hiring the agents son(40 yr old +/-) and he wasn't licensed. All he did was cut everything out and cover it up. He charge around $1500. The pest company signed off on the work
I was in Wash finishing up the previous home so I never saw the work until after we closed escrow. At that point, I blamed the home owner, agent, the broker(the agents daughter), the "repairman" son and even the pest company.
I should have persued this but at that time, I just didn't have the energy to. Less stressful to do it myself."
This is exactly the point. Do you feel you could have gone back after the agents son and had him either complete $3500 worth of work he did not get paid for or give you $3500 he never recieved? He did a $1500 patch and the previous owner took the money and ran. The problem is the seller not the contractor.
Thanks for the example.
In my case, I think it is the 3 parties. The homeowner because they should bare the responsibility. The agent and her son, because they are the ones had the the knowledge. I was also told that the agent was the one that contacted her son and discussed the repair work.
The agent(RE agent for over 30 years) and her son had the professional knowledge to do the work correctly. The homeowner could claim ignorance and say that she left the decision up to them. But, if she save $2,000+ on the repairs, then she should probably cough up the rest.
The agent is defiantly at fault because she was instructed in writting to only use a licensed contractor. (she could be reprimanded by the real estate association)
The son is at fault because Calif. Contractor Licenseing laws state that any person doing work for over $600 must be licensed.
But then this is my take on it. They only way to know for sure is to take it to court, which I didn't do. So at this point I'm talking out my rear.
At this time it has become a mode point because I don't own the house any more. And, that is a whole 'nother story.
Edited 10/17/2009 1:36 pm by migraine
"The problem is the seller not the contractor."In his PARTICULAR case yes the seller was liable as he had a contractor with here requiring certain specific work that was not done.And probably the agent, but would need to know details both the purchase contract and the agents duties in that state.And while the contractor might be in violation of the state laws that does not mean that he has any liability to the buyer.In a case like this probably all 3 will be named (along with the postman that delivered the contract) and let the courts excuses any that aren't liable.But that is nothing like the original problem..
William the Geezer, the sequel to Billy the Kid - Shoe
Edited 10/17/2009 1:48 pm by BillHartmann
No, I am not trying to prove the contractor was the one at fault, I KNOW he was the one at fault. If he was asked to waterproof a deck to sub standard he is a fool and either has no morals or is just plain #### at what he does. I don't believe that was the case though, I am sure he made a genuine attempt but that it failed. The work is less than a year old and was done with permits, I am sure he intended for it to last a while (not just through the summer!).
Waterproofing decks requireing permits?
Where exactly are you located?
it's life. you can spend a lot of time chasing the eveil-doer with an attorney and his assocaited fees along with your own time to get... how much?
"How can sub standard possibly be the agreement?"I did some repairs once in a case like this. I had no knowledge that the HO was putting the place on the market. He told me to just do enough to get by for this summer, then we will have you fix it right after the season. We get that a lot here.
So I fixed it just barely and was surprised to see moving vans in and out a couple months later and a new owner.I always wondered if they were told that I had 'fixed' everything.
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The answer lies somewhere in the laws of your state and only an attorney can give you a clue. Actually, the attorney would have to deal with the new owners since they're the "injured parties".
You have never been asked by a HO to do work below your standard of quality?
Sure, but I always turn it down. I know that it will end up coming back to bite me in the ####. Besides, who in their right mind would ask for a waterproof deck to be done sub standard and who in their right mind would agree to perform the work.
I can think of two repairs that landed me some high end work in just those circumstances. One had three rotted boards showing in the deck surface is all. Temp repair for the season, then a $14,000 job later when they were gone.The other was a minor rot repair call that turned into a $35,000 deck, later a $37,000 kitchen, and the following year a whole house renovation so the total was over half a million.
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I think you're missing the point. We are not just talking about sub standard work here, we are talking about work that didn't do what it was intended to do. Let me ask you this specifically, if a client said 'fix this waterproof deck (not patch it) to last a few months' what would you do? Consider also that the amount of time and labor would (in this case) have been the same whether it was a temporary fix or a lasting one.
i'm not missing what you are saying, but "if a client said 'fix this waterproof deck (not patch it) to last a few months'""IF" is a very wide word for the number of letters it uses.Do you know that is what was said?
I can think of a dozen scenarios how that question might come about, probably half of them where I would do the repair and half where I would not. One where I commonly did was where the HO ( or school board or hospital board) was saying, the whole job is not in the budget for this year, please do what you can to get by for a while and make an estimate to do the whole thing later."With the graco product and a new roof, I can picture a scenario where a roofer was given the job of re-roofing the house and told, "this is what kind we want on this deck" I might have said, I don't believe in that sort for this climate, but if you insist and you are willing to accept the fact that it may not stand up..."We can go on and op with IF speculations all day long and not get anywhere in your specific situation without the facts of that particular case. IFs are like dandelion seeds. They go everywhere and nobody gets anything out of them
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I don't think I suggested anywhere in the thread (I'm not going to go back and check as this thread is getting pretty long) that I was suggesting legal action at all, in fact I never even mentioned that route to my clients (I just wondered if the contractor should be reasonably expected to resolve the problem.) I think that somehow lawyers wormed there way into the thread hoping for a slice of pie. Incidentally, your point about sometimes being asked to do temporary work is fair enough, if everyone agrees to the fix being just temporary. However, I would have thought that the onus would be on the Contractor to educate the client as to the implications of a temporary fix and, certainly in the case of a school or hospital if you agreed to 'temporarily fix a deck' and someone fell and broke their neck then I am pretty sure that you would get a phone call Is it worth it even if you are half way through a multi million $ phase of a project you got as a result of agreeing to do a 'fix'?
"if everyone agrees to the fix being just temporary. However, I would have thought that the onus would be on the Contractor to educate the client as to the implications of a temporary fix"We are entirely agreed there, but it seemed that you were taking this to the contractor-new owner stage, and the contractor cannot be expected to service some theoretical buyer in the future that he has no relationship with or knowledge of.Now certainly if some new buyer were to contact me and ask about work I had done, I may very well be willing to further the relationship. My genral policy is that if I did something wrong, I will take care of it. I don't shy away from going back because in general it is a marketing opportunity for me and I cannot think of a return call that did not net me more work as a result.But that is my POV in doing business. I took the tenor of your comments to suggest that you or the new HOs were casting blame on this previous contractor without know what the nature of his relationship with the previous HO was. My example were to cite possibly ways he might have been shoehorned into doing what I think you termed substandard workmanship.
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
'I took the tenor of your comments to suggest that you or the new HOs were casting blame on this previous contractor without know what the nature of his relationship with the previous HO was. My example were to cite possibly ways he might have been shoehorned into doing what I think you termed substandard workmanship.'I was casting blame because IMO when it comes to waterproofing decks either it leaks or it doesn't (i.e. it works or it doesn't, there is no middle ground). Maybe I'm naive but I can't possibly believe that an owner would say 'give me a bid to waterproof the deck, I don't care if it leaks in a few months time and I am prepared to write into the contract that should it leak I am willing to be held responsible'The intention of the initial post was more to determine who should have been contacted first, the sellers agent, the seller or the Contractor. It seems as though it should have been the sellers agent.
I did a seismic retrofit for a woman, and she also asked me to look at a bit of rot up under the eave of a second story roof on a 2 1/2 story building. She was under the impression it was a minor problem. When I checked it out, I discovered that the addition roof, which went under a second story deck, had not been re-roofed 15 years ago when the rest of the roof had. Apparently the roofer decided that it was too much hassle to roof under the deck, as it would have meant pulling up all the deck boards to get access. She was not in a position to re-roof at that time. She had recently been laid off, and had x number of dollars, period.I pulled all the deck boards, and laid two layers of tar paper with battens to get her through the rainy season. I also gooed a bunch of caulk onto some drip edge at the stucco wall. In my bill, I explicitly stated this was an emergency, temporary repair. I also noted that the deck joists were extremely rotted as well, and should not be assumed to be safe. If she sold the house and did not disclose any of that, I don't see how that's my fault.Oh, and, she was so pleased that I took care of her situation, got her through the winter, didn't upsell her and demand that she "permanently" fix her stuff when she was stressing about money, etc. that she has called me to make sure we get our ducks in a row for next spring to tear the 2nd story deck off, rip off all the stucco on that side of the house, install new french doors and a new deck, fix any rot, re-frame for seismic (including foundation), and basically anything else that's found in that entire wall. Probably 150k of work.Never, ever blame a contractor, when you don't know if they were doing exactly what the client asked. Unless you see the contract, and the emergency/temporary stipulations, you're assuming things you shouldn't.
k
Edited 10/17/2009 11:24 pm by KFC
Again, I understand what you are saying in THIS PARTICULAR EXAMPLE, BUT there is one main point that keeps getting overlooked , maybe I haven't made it clear enough.
THE PRODUCT USED IS SUCH THAT IT CANNOT BE USED FOR A PATCH, THE PROCESS REQUIRES THE APPLICATION IN A CONTINUOUS COAT APPLIED BY ROLLER/BRUSH ETC.
And I can see from the area it covered (including the deck/wall flashing) that it was done in one continuous coat and not intended as a quick fix. I am, in fact, quite sure that the Contractor intended to do the job properly but that it failed. Again, it would have required the same amount of labor and materials to do it this way or without a leak.
In your example, and granted what you were doing was acceptable as was the wording of the contract, I'm certain the temporary fix was less expensive than the cost to do the job properly the following year (obviously since the lady didn't have the money when she asked for the quick fix).
I went and took a look at the Gaco roof products site. I can't see your application from here but I wonder how qualified you are to be making this statement
"maybe I haven't made it clear enough.
THE PRODUCT USED IS SUCH THAT IT CANNOT BE USED FOR A PATCH, THE PROCESS REQUIRES THE APPLICATION IN A CONTINUOUS COAT APPLIED BY ROLLER/BRUSH ETC.
And I can see from the area it covered (including the deck/wall flashing) that it was done in one continuous coat and not intended as a quick fix. I am, in fact, quite sure that the Contractor intended to do the job properly but that it failed. Again, it would have required the same amount of labor and materials to do it this way or without a leak."See there are quite a number of Gaco products. It may be that the one used was not the most appropriate one. For instance, there are elastomeric coatings that are rolled on. There are liquid products that have re-inforcing mesh imbedded. And there are others. I have often seen situations where a HO thinks that just coating over a roof will make it last a lot longer, but the fact is, that a coating is good for helping a good roof last longer, but will not often fix things that are wrong with the original roof. Not only does the leak re-appear in a year or two, but a true repair is made harder by the application of the coating.Again, this comes back to the relationship between the HO seller and the contractor who did the work. You do not know what transpired between the two of them. It may be that he did what he was asked to do, no more and no less, and is not guilty of what you are trying to indict him on.
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'I went and took a look at the Gaco roof products site. I can't see your application from here but I wonder how qualified you are to be making this statement'I have already called the company and spoken with their technical department about the product. They specifically said that it is not for patching and that it is applied in a continuous coat. 'Again, this comes back to the relationship between the HO seller and the contractor who did the work. You do not know what transpired between the two of them. It may be that he did what he was asked to do, no more and no less, and is not guilty of what you are trying to indict him on.'Can you seriously imagine that any owner would have said 'redo my deck but don't use the correct product (even though the total cost is the same to do it with the correct product) or worry about leaks etc' Don't you think the Contractor would have said 'I'm sorry sir/madame that you have lost your mind but I would prefer to do a permanent repair that will take me the same amount of time and I won't charge you anymore.' I know I would.
no, I don't imagine it that way, but I do imagine and have seen other scenarios that can lead to what you have. obviously you are missing something here, so no need of me repeating it in endless different ways.
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I guess you have to be there.
Sometimes people do silly things. When looking to buy a house several months ago we looked at one that seemed to fit our criteria and was in an area that was appealing to us. One of the plus items listed on the sales literature was a ~800 sq ft attic finishing addition that included a full bath with what appeared to be code compliant electrical and the addition of a heat pump and air handler for the new living area. I'm certain that it was at least $30K worth of work. Probably more. Maybe a lot more. There is a disclosure form that must be filled out in our state to put a house up for sale. Our agent noticed that the "no representation" box had been checked beside a question of "has there been any unpermitted work done". Further investigation on the county's permitting web site showed that indeed the addition had not been permitted (and inspected). We walked away from that one, and a few days later the RE listing was adjusted down in price and on the advertised heated square footage. This guy had totally scrouged himself. And for what? To save a maybe $800 permitting fee and the inconvenience of inspections.... I just looked and the house did not sell and it is no longer for sale.
Well I have to ask. Exactly how much was the contractor paid to do the repair?
About $2/hr by the time he's been back to fix it!
I'd contact the seller then.And like I've said, a lot of times folks will say, just get me thru this year, then we'll talk.
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You seem not to know what the nature of the agreement was between the former owner and the contractor,. nor of the exact nature of the disclosed deficits at time of sale.
So you would be well advised to limit your advice to your clients to observations of the facts of the conditions, not to any kind of legal advice, unless you are a member of the bar.
on the leaking Graco, "Can they call the original contractor out to take care of the problem (it was done less than a year ago) even though it was the previous owner that contracted with them?" I believe that their recourse would be if Graco issued some sort of a transferrable warrantee and if it had been registered with Graco, then the current owners may be able to file a claim with that company.
Alternatively, it occours to me that Graco may want to preserve their god name, and enticing the company rep in that area to visit the job, might have some negotiable value. For instance, if Graco licenses it's installers, then the contractor's license gives Graco an arm to twist to get him to fix this.
Personally I am not sold on that sort of product for cold weather climates.
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Your only contract is with the former owner; that's who you have an issue with. If HE wants to get HIS contractors to fix it, that's his responsibility.
Otherwise, get it fixed and sue him for recovery. Let the court decide whom to believe.
More important are the sale documents. If you bought the property 'as is,' then getting things fixed is a whole new battle - where you'll have to argue fraud and misrepresentatios on his part. An uphill battle.
I know I've been telling everyone, for at least the past decade, that lots of schlock was being concealed by nice paint jobs. This was especially true of the 'flippers,' for whom the only goal was to pass the wreck off to the next sucker.
tims contact is with the current owner, not with the former who sold it to them.
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