Can someone explain breach vs material breach of contract?

[dawell0]

What is the name of your state? OH
I have posted other times about my house nightmare and I am using an attorney to plead my case with getting out of a contract with an incompetent builder. Anyhow, even though the foundation walls are not structurally sound, our lawyer says that it will be hard to say that it is a material breach of contract. The concrete is up to strength average but there were 2 samples that were under the specified strength as well. Also, we had a provision in the contract that we would be present during the waterproofing of the foundation walls. In fact, we were not present (nor told about it) and it was damp proofing instead of waterproofing. Since that is clearly written in the contract, how is that not breach? My attorney said material breach vs breach is different. Can someone explain this to me? Thanks!

 

[Rhubarb297]

What is the name of your state? OH
I have posted other times about my house nightmare and I am using an attorney to plead my case with getting out of a contract with an incompetent builder. Anyhow, even though the foundation walls are not structurally sound, our lawyer says that it will be hard to say that it is a material breach of contract. The concrete is up to strength average but there were 2 samples that were under the specified strength as well. Also, we had a provision in the contract that we would be present during the waterproofing of the foundation walls. In fact, we were not present (nor told about it) and it was damp proofing instead of waterproofing. Since that is clearly written in the contract, how is that not breach? My attorney said material breach vs breach is different. Can someone explain this to me? Thanks!

I'm sure you'll get different interpretations, and I'm too lazy to look up the precise definition, but my interpretation off the top of my head is that a "material" breach is a breach of an important term of the contract that goes to the very heart of the contractual agreement.

Let's say you lease property to me. In the lease I say you're going to pay me $500 per month and that the check is to be mailed to me by First Class Mail. Instead of mailing it to me, you bring it by my house and slip under the door. You're not following the contract - you've breached it. But the breach is unimportant and not material (not to mention I don't have any damage.)

Now let's say you stop paying me the $500 a month. That's a material breach.

In your case although you specify waterpoofing over damp proofing, their violation of that provision may not be deemed big a violation and thus not a material breach. I'll be the first to tell you I don't know the difference between the two, but it does sound like proving the issue regarding the strength of the walls will be difficult as well as proving that what they did damaged you.

 

[HomeGuru]

What is the name of your state? OH
I have posted other times about my house nightmare and I am using an attorney to plead my case with getting out of a contract with an incompetent builder. Anyhow, even though the foundation walls are not structurally sound, our lawyer says that it will be hard to say that it is a material breach of contract. The concrete is up to strength average but there were 2 samples that were under the specified strength as well.

Generally, failure of 1-2 samples does not indicate overall non-compliance with specs. You have not specified what samples but it appears that you are talking about compaction tests samples rather than slump tests. Is this a 28 day+ compaction break test? What was the actual psi vs. the specified psi? And what did the project structural engineer tell you when you review the test results with him/her? Lastly, what areas of the cast-in-place pour were these batch samples taken from ie. footing, walls etc.?
**********

Also, we had a provision in the contract that we would be present during the waterproofing of the foundation walls. In fact, we were not present (nor told about it) and it was damp proofing instead of waterproofing. Since that is clearly written in the contract, how is that not breach? My attorney said material breach vs breach is different. Can someone explain this to me? Thanks!

**A: what inspector, architect or engineer was present to verify application on your behalf?

 

[dawell0]

No one was present--not us, not the builder, his site coordinator, or our engineer--when the concrete was poured or when the damp proofing was put on. The only one there when the damp proofing was put on was the subcontractor doing the work (takes only a few hours), although obviously someone had to schedule it. We were not even aware that the work was to be done that week or else we would have made arrangements for someone to be there. I think that since that was a written clause in the contract, it was a material breach, especially since you cannot put waterproofing over damp proofing per the manufacturer. I guess our lawyer and his lawyer would disagree (both real estate specialists) that it is a big deal, but a dry basement is to me! I guess that you agree with our counsel.

We had also specified verbally to the builder that we wanted to be there when the concrete pour was occurring. Again, he didn't tell us because honestly I don't think that they knew when things were going to happen or didn't want us or our inspector to see the work being done. According to the neighbor, during the pour the concrete guys got stuck in the mud, quit pouring until an industrial tow truck could get out there, and proceeded to wait several hours between trucks, including taking a LONG lunch break. Obviously, this is BAD BAD BAD. You are supposed to keep pouring until the entire wall is done and have someone stirring it the entire time. As a result, there are the cold joints present in the walls where the concrete dried that was in place. The next concrete was not placed until hours later. These pose a problem with the chance for leaking and structural issues, but it would be after a long period of time, like around 10 years when the builder's warranty expires. Believe it or not, even though my husband and I believe that it is shoddy workmanship, this passes code and the American Concrete Institute Standards, but code inspectors here are not structural engineers and don't take the house specs into consideration. We hired a structural engineer (actually 2 independent engineers) who both said independently that the concrete was NOT stable as is to support the house long term. We hired individuals to test the strength of the concrete by taking out some slivers of it and taking it to a lab and by an in-wall gun test. They hired another company to do the same strength analysis. These tests have come back mixed, but for some reason, the lawyer thinks that their tests were superior. Still, it needs additional major supports, so we should have them on that money.

Regardless, my husband and I are going to tear the walls down and start over with another builder because this one does not listen or care one iota. Oh well, at least we are going to be able to get out of the contract. We are just going to lose a lot of money on the deal, but at least we will have a well-built house. It just goes to show you that even after planning, researching, and hiring experts to watch over the process, things can still go wrong. Our next contract will be 100 pages long with EVERY spec in there, including things that I don't understand, even if I have to specify the kind of nails used.

THANKS EVERYONE!!!

 

[JETX]

a "material" breach is a breach of an important term of the contract that goes to the very heart of the contractual agreement.

CONGRATULATIONS!!!
You got one right!!! I am the first to 'chew' when you get them wrong, and want to also be the first to tell you when 'you done good'.

material
adj. relevant and significant. In a lawsuit, "material evidence" is distinguished from totally irrelevant or of such minor importance that the court will either ignore it, rule it immaterial if objected to, or not allow lengthy testimony upon such a matter. A "material breach" of a contract is a valid excuse by the other party not to perform. However, an insignificant divergence from the terms of the contract is not a material breach.

 

[HomeGuru]

And I am the first to chew the fat.

 

[HomeGuru]

No one was present--not us, not the builder, his site coordinator, or our engineer--when the concrete was poured or when the damp proofing was put on.


**A: that is precisely my point. This was your responsibility as the homeowner to insure that you had adequate and proffesional respresentation.
********
The only one there when the damp proofing was put on was the subcontractor doing the work (takes only a few hours), although obviously someone had to schedule it. We were not even aware that the work was to be done that week or else we would have made arrangements for someone to be there. I think that since that was a written clause in the contract, it was a material breach, especially since you cannot put waterproofing over damp proofing per the manufacturer. I guess our lawyer and his lawyer would disagree (both real estate specialists) that it is a big deal, but a dry basement is to me! I guess that you agree with our counsel.

We had also specified verbally to the builder that we wanted to be there when the concrete pour was occurring. Again, he didn't tell us because honestly I don't think that they knew when things were going to happen or didn't want us or our inspector to see the work being done. According to the neighbor, during the pour the concrete guys got stuck in the mud, quit pouring until an industrial tow truck could get out there, and proceeded to wait several hours between trucks, including taking a LONG lunch break. Obviously, this is BAD BAD BAD. You are supposed to keep pouring until the entire wall is done and have someone stirring it the entire time. As a result, there are the cold joints present in the walls where the concrete dried that was in place. The next concrete was not placed until hours later. These pose a problem with the chance for leaking and structural issues, but it would be after a long period of time, like around 10 years when the builder's warranty expires. Believe it or not, even though my husband and I believe that it is shoddy workmanship, this passes code and the American Concrete Institute Standards, but code inspectors here are not structural engineers and don't take the house specs into consideration. We hired a structural engineer (actually 2 independent engineers) who both said independently that the concrete was NOT stable as is to support the house long term. We hired individuals to test the strength of the concrete by taking out some slivers of it and taking it to a lab and by an in-wall gun test. They hired another company to do the same strength analysis. These tests have come back mixed, but for some reason, the lawyer thinks that their tests were superior. Still, it needs additional major supports, so we should have them on that money.

Regardless, my husband and I are going to tear the walls down and start over with another builder because this one does not listen or care one iota. Oh well, at least we are going to be able to get out of the contract. We are just going to lose a lot of money on the deal, but at least we will have a well-built house. It just goes to show you that even after planning, researching, and hiring experts to watch over the process, things can still go wrong. Our next contract will be 100 pages long with EVERY spec in there, including things that I don't understand, even if I have to specify the kind of nails used.

THANKS EVERYONE!!!

**A: you are finally understanding the right way. Also include along with the kind of nails, a nailing schedule.

 

[dawell0]

Ha ha, but it won't be a material breach of contract because it will be considered "insignificant". Oh well! Thanks for the explanation. It makes things more understandable.