Builder not finishing job / completing repairs

[jasbrit74]

What is the name of your state (only U.S. law)? Ohio

We moved into our new home on May 21st 2008. It is a custom built home.
The day we moved in, there were a few "minor" things that that the builder still needed to complete. We were advised that they'd be completed within "a couple of weeks". Some were, and some weren't... and one or two things still haven't been completed (he forgot to install one exterior faucet and still has "temporary" steps in place at the side of the home).
I know the builder and I have contacted him on several occasions to get these unfinished jobs done, and each time I call him, he just tells me that he'll get them done asap. It's now May 16th 2009, and these things still aren't completed.
To compound matters, in February, we found a few cracks in our basement walls (in the small unfinished area, of a 2800 sf fully finished walkout basement), that were allowing a significant amount of water infiltration... so much so, that we need to put a bunch of large towels and absorbent material on the basement floor to absorb the large amount of water coming into the home. This was highly concerning because the rest of the basement is a completely finished living area with walkout to the back yard, and obviously, we can't see what's going on behind the majority of the walls.
I called the builder - and to his credit - he came right over to check it out. He then advised that when the ground defrosted, he'd have it checked out and repaired. Well, last week, a waterproofing expert came out to the home and ran a series of tests. It turns out that the grade of our home is incorrect, and the weep holes in the brick had been blocked by dirt. This caused water infiltration (in the winter) to get behind the brick walls, build up in the wall cavity, freeze and crack the basement wall. Now, when it rains (and when the frost melted) a significant amount of water builds up on our basement floor. Unfortunately, due to the incorrect grade, simply removing the dirt to expose the weep holes isn't the answer, because removing that dirt would actually result in the finished grade angling back towards the house, meaning even poorer drainage, and probably more water build-up. Anyway, in running the series of test, this waterproofing expert dug away some dirt to create deep holes at a couple of places around the foundation. After completing his test, he called the builder (my wife was present) and advised him that he needed to excavate away the clay near the foundation and replace it with a drainage system (stone, tile etc).
This was 2 days ago. I haven't heard anything at all from the builder since, and I am now left with 2 rather deep holes (6-8" diameter) dug out at the foundation.
Then, today, it rained, and a load more water entered our basement.
In addition to the cracked and leaking basement, one of he exterior faucets that was installed originally, stopped working. I advised the builder 3 weeks ago and again was told that he would "take care of it", but nothing has happened on that one either. There is a list of repairs that I sent to him over 5 weeks ago, and the only thing that he's done off that list is get the waterproofing expert out to take a look at the problem and he has adjusted an interior door... the other items on the list are still incomplete.
We're fast approaching the 1 year "warranty" period of moving into the home and want to know, legally, where we stand. Is it possible to begin litigation against this guy, or his sub-contractors? Who is to blame for the cracked foundation and leaking? Is it the builder, solely? Is it the foundation crew? Is it the people that set the grade of the home? I just don't know what to do anymore... other than seek legal advise because I have called the builder over and over again, and get minimal results. I just don't want to be left with all these problems to fix myself, because they have become apparent during the first year "warranty" period.
Your professional advise would be greatly appreciated.What is the name of your state (only U.S. law)?

[justalayman]

hang on for HomeGuru. This is his line of work and would be the best poster here to advise.

Not inferring the others that may post are anything less than competent but HG knows this stuff well.

[HomeGuru]

Originally Posted by justalayman

hang on for HomeGuru. This is his line of work and would be the best poster here to advise.

Not inferring the others that may post are anything less than competent but HG knows this stuff well.

**A: that's nice but let's let others take a shot too since I have limited time this week.

[jhlwstdnt]

It isn't clear from the facts, but your basement walls are made from CMU, correct, acting as/or part of the foundation. I do not believe that plugged weep holes are your issue. It sounds like the CMU walls have failed, causing the waterproofing to fail, and now you have ground water seeping in.

When you had your home built, did the GC have general liability insurance (not builder's risk)? If so, I would send a Notification of Arbitration request (whatever your contract states) to the builder with a copy of the letter to his insurance agent. Let his insurance get involved, saves you attorney fees.

[jasbrit74]

Hi,

Thanks for the follow-ups... they're greatly appreciated.
I'm not exactly sure what CMU's are... but if they are anything like pre-fabricated concrete units - then no, my foundation was not built from any pre-cast concrete materials. The foundation is a typical poured concrete wall foundation.
I spoke further with the "waterproofing expert" this afternoon, to try and gather more information regarding the cause of what has happened, and what needs to be do to rectify the problem.
In his opinion: When the home was built, the foundation was poured correctly and the external waterproofing (which looks like a dried black tar-like substance) was applied correctly. The bricks have been installed correctly, with flashing behind the bricks and there is approximately a 1" gap between the back of the bricks and the wooden frame / wall which has a vapor barrier wrap.
In the second course of bricks, are the weep holes - positioned every third brick. Each weep hole looks like a small vertical piece of sponge or foam-like material that is replacing a vertical mortar joint.
There are landscape beds at the front section of the house between the house and the driveway. The grade set by the driveway - as it get close to the house - is a little too high, and the landscape beds are set at a higher grade so water would "run-off" the dirt, then run off the driveway to the storm sewer on the street. To accomplish this, the dirt from the landscaped grade significantly covers the weep holes. That dirt is dense clay, which is apparently very poor for drainage.
So, when we had some severe rains (2-3 inches per day a couple of times), just before it got really cold in November / December - water was getting behind the brick (which I have been told is a very standard process) but could not escape through the weep holes (due to coverage by clay dirt), and eventually water built up on the top of the foundation wall (above the brick ledge) that isn't typically waterproofed.
As the water sat on the concrete and couldn't escape, it penetrated the concrete. Then, when it got really cold in winter, it froze and caused the concrete to crack. Over the course of a couple of winter months with a few thawing and refreezing cycles at surface level, the crack has slowly worsened. Then in late winter when we got more heavy rains, the same problem arose - but by now cracks that had formed in the basement walls, allowing the water to infiltrate the basement.
His potential resolutions:
1. Get the entire concrete driveway (and it's rather long with a 60 x 44 courtyard) ripped out and replaced at the appropriate grade close to the home, so the finish landscape grade can be adjusted and fill dirt level will be below the weep holes, exposing them, so they drain adequately. He thought that this resolution was not a realistic proposition, and would be a major inconvenience - which, to be honest, I couldn't care less about if it absolutely fixes the problem
2. Remove the clay dirt close to the home, so the weep holes are exposed. Clean the weep holes. Install a second drain tile about 6" below the weep holes and tie it into the basement drain tiles. Backfill the entire area around the new tile and close to the home with crushed stone, and then apply mulch over the crushed stone (for aesthetics), insuring the weep holes are not covered in any way. He thought that this is a more realistic resolution that would solve the problem, get any surface water away from the home quickly and also allow water that has penetrated the bricks to drain through the (now) exposed weep holes.

So - now that I am armed with that information... I'm still not sure if I even have a case against anybody. It seems to me that somebody, somewhere in this process screwed something up pretty badly... but is that a correct assumption? To me, the fact that there is a fix to the problem, implies that there was a mistake made initially... so who is responsible for this?
My biggest concern before embarking on getting a fully custom home built, was the sub-contractors taking responsibility for their errors. I may be wrong - but my overall impression of the construction industry before this was one of very poor customer service and it seems that they're much more willing to pass the blame onto anybody that they feel they can. Now that this has happened, my opinion has strengthened. Obviously a contractor knows that once they've finished the job they're doing on my house... I'm not going to be a repeat customer for at least 10-20 years... so why do they care? Now, to fix this... they're losing money... so they'll try to blame someone else.
I guess, ultimately, it's the GC's responsibility. With hindsight... and we know that always 20:20 - we need to push for much stronger consumer protection laws in this field... where else do you make a purchase for almost $500,000 and end up with a vague, non-specific 1 year warranty!!!!!!! We probably wouldn't spend $20,000 on a new car if the warranty was only for 1 year - but we spend hundreds of thousands on homes... and they don't even appreciate in value any more!

[jhlwstdnt]

It is not unusual for water to soak into your brick and slowly percolate down to the weep holes. The brick should sit on a brick ledge and it would be prudent for contractors to install galvanized or copper flashing or even a MFM material on top of the wall and under the brick. Just to help guide the water out of the slab. The grade not being at the correct elevation is a problem. But, I don't think that rain water caused the cracks in the concrete walls. What size are the cracks? If I were conducting the investigation I would want to see the concrete mix design the engineer specified, get the test data from the concrete company, and ensure that the shrinkage was appropriate. This is what causes cracks in concrete. You need to get a copy of the concrete tickets, it will contain a mix number, get from the ready mix company all the shrinkage data, and make sure that the contractor/subcontractor did not use the wrong concrete. Merely pouring the concrete wall/slab is not enough.

Again, you can sue the GC, it was his overall obligation to ensure the construction was done according to plans and specs. Then the GC will sue his subs, but you do not have privy with the subcontractors, so you must seek to recover damages against the GC. Do you know if he has general liability?

[12345672]

You may still have a case against the contractor if he does not fix the problems. You could have your contracts and the situation reviewed by a local attorney.

CMU's are "concrete masonry units" usually called concrete blocks.

Whatever is done, the water problems need to be fixed. While it is possible for ice to crack a properly built foundation, it would be a good idea to have a foundation engineer come out and test the walls to make sure they are properly built and the crack is not going to be a bigger problem in the future.

Is the contractor now refusing to do anything since the 1st year is up?

[jhlwstdnt]

1234...

It is possible for water, ice, even me walking on it, to crack a properly built foundation. However, it is not foreseeable that an engineer or architect would design a retaining wall/basement wall (let's add a foundation for this purpose) that would not take into consideration live loads, dead loads, and hydrostatic pressures from adjacent water and frost for this type of environment.

If the OP wants to prove negligence in this case, he must show that the concrete sub poured (the properly built walls) with the incorrect concrete mix design. The strength of the concrete, including its water/cement ratio, is what is critical, not just the workmanship. Was the mix design a performance spec or design spec?

Also, there is no such thing as a "foundation engineer". Within this license you have, civil, mechanical, structural, electrical, hydrostatic engineers. The OP should enlist a structural or civil engineer, maybe even an architect, to inspect his basement walls.

[12345672]

Originally Posted by jhlwstdnt

If the OP wants to prove negligence in this case, he must show that the concrete sub poured (the properly built walls) with the incorrect concrete mix design.

So if the sub poured the wall right and the concrete mix was designed correctly, there is no other possibilities for negligence? Be careful with your absolute statements. I agree that the OP should have the wall checked out.

Originally Posted by jhlwstdnt

Also, there is no such thing as a "foundation engineer".

Really, so anyone that advertises as a "foundation engineer" doesn't really exist? You should complain to the foundation engineers network about the existence of their website advertising non existent people:
http://www.foundationengineersnetwork.com/

Be careful with your absolute statements.

[jhlwstdnt]

There are multiple reasons the GC could have been negligent, not arguing that. In fact, I asked the OP if he knew if the GC carried general liability insurance so he can send them a letter and let them handle the claim. Saving the OP money, and getting his basement fixed.

But to answer your question, that's correct. If the subcontractor and the GC built the walls according to plans and specs, then they are not liable for any construction defects. There is plenty of case law on this issue. Which is why I asked if he knew if the specifications were design specs or performance specs.

Also, the Foundation Engineers Network is the name of the organization. Can't fault them for using this name. These paragraphs are from their site:

"The Foundation Engineers Network (name of an organization, not a profession) is a website designed for homeowners who are looking for a professional engineer that will guide them through the process of foundation repair.

'Every foundation repair job should start with the hiring of a foundation engineer, whether a structural, civil, geotechnical or professional engineer. Hiring an engineer, who specializes in foundations.'"

[12345672]

Originally Posted by jhlwstdnt

But to answer your question, that's correct. If the subcontractor and the GC built the walls according to plans and specs, then they are not liable for any construction defects.

In the OP's case it was not built properly. The grade outside was higher than it should have been for the way the house was built and resulted in water damage. To say that the builder/GC has no liability because one portion was built according to plans does not look at the whole picture of the builder's responsibility which includes all of the parts of the project including the grading that was improperly done or designed. You should not want the OP to go away thinking that if the wall was built to the design specs there is no recourse to the ongoing damage.

Whether or not you like that engineers that specialize in foundations can be called "foundation engineers" is off topic and is silly to argue.