Builder's Sub installed different system than specified in contract

[burningup]

What is the name of your state? CT

I purchased a new house 2 yrs ago last spring & have complained since moving in that the a/c wasn't working properly. As per builders instructions, have dealt with builders HVAC sub & the sub couldn't i.d. problem nor solve it. I hired a forensic engineer to inspect/troubleshoot system after initial impromptu meeting with builder indicated that builder was not going to be receptive to our complaints.

Forensic engineer's prelim report suggests upstairs/downstairs systems were reversed during installation & various ducts/returns need to be relocated. Most importantly, engineer pointed out that system specified in contract for sale is "TOTALLY DIFFERENT" from the one actually installed in the house.

What are my options? Is it too late to file suit against the builder because it is past 1 year from closing?

Thanks for anyone who replies.

 

[shortbus]

Simple breach of contract. They owe you the difference in value between the system you contracted for & the one you got. Hopefully you have written documentation of the original spec to prove your case. Statute of limitations is not likely to be less than 2 yrs (check CT law) so the 1 yr delay is not an issue.

 

[Buk1000]

I do not believe CT has a "Right to Repair" law but you will need to find out. http://www.nbnnews.com/NBN/issues/2006-04-03/Front+Page/index.html Article is very current but things can change fast. Right to Repair laws mean the homeowner has to follow a very strict set of steps in any builder complaint. The laws were designed by builders so naturally they're mostly good for builders.

A very good consumer org that I found helpful myself is http://www.hadd.com They DO have a CT representative last I knew. Another one you might try is http://www.hobb.org There is no ONE source of info for this, you may have to do a lot of research. Narrow down the questions by getting good legal advice asap. You may find that your case doesn't interest lawyers and then you will need to do quite a bit of work if you find you have a valid case but just cannot get a good lawyer to take it. This is what happened to me, (though I'm not in CT so not of any help with CT info).

Your state may only require a builder warranty his work for one year. If you have written or other proof that you informed him of the problem and can show he didn't fix it right, you will be better off. With no proof he can easily say you failed to meet the deadline. The statute of limitations for discovery of, and filing of a lawsuit on, construction defects can be considerably longer though, and varies by state. This is another question to ask the attorney.

Find out also what the limit is in CT for small claims court. If you can go that route it may be cheaper and faster to fight it. Some states have raised the small claims limit to several thousand dollars now.

Though it sounds hokey, if you find that a reporter in your area has covered "bad contractor" stories before, you might try that, especially if court is just not an option. Your problem is within the range of relatively inexpensive fixes that builders sometimes will fix rather than have bad press on TV. Keep in mind that tactics like this are often resorted to because the case wasn't big enough to interest a lawyer.

Last but not least, if there is an arbitration clause in your contracts and/or warranty you cannot sue in most instances. So don't threaten to sue until you know for sure that you can, and will.

Good Luck.

 

[Zigner]

While this sounds good, in general, you are mistaken about the situation.
OP is not dealing with a warranty issue. A warranty issue would apply if the contractor and OP had contracted for XYZ unit to be installed. XYZ unit was installed and then XYZ unit broke down. What has happened in this case is that they contracted for ABC unit, but XYZ unit was installed. That's a breach of contract, and the OP should deal with it as such.

I do not believe CT has a "Right to Repair" law but you will need to find out. http://www.nbnnews.com/NBN/issues/2006-04-03/Front+Page/index.html Article is very current but things can change fast. Right to Repair laws mean the homeowner has to follow a very strict set of steps in any builder complaint. The laws were designed by builders so naturally they're mostly good for builders.

A very good consumer org that I found helpful myself is http://www.hadd.com They DO have a CT representative last I knew. Another one you might try is http://www.hobb.org There is no ONE source of info for this, you may have to do a lot of research. Narrow down the questions by getting good legal advice asap. You may find that your case doesn't interest lawyers and then you will need to do quite a bit of work if you find you have a valid case but just cannot get a good lawyer to take it. This is what happened to me, (though I'm not in CT so not of any help with CT info).

Your state may only require a builder warranty his work for one year. If you have written or other proof that you informed him of the problem and can show he didn't fix it right, you will be better off. With no proof he can easily say you failed to meet the deadline. The statute of limitations for discovery of, and filing of a lawsuit on, construction defects can be considerably longer though, and varies by state. This is another question to ask the attorney.

Find out also what the limit is in CT for small claims court. If you can go that route it may be cheaper and faster to fight it. Some states have raised the small claims limit to several thousand dollars now.

Though it sounds hokey, if you find that a reporter in your area has covered "bad contractor" stories before, you might try that, especially if court is just not an option. Your problem is within the range of relatively inexpensive fixes that builders sometimes will fix rather than have bad press on TV. Keep in mind that tactics like this are often resorted to because the case wasn't big enough to interest a lawyer.

Last but not least, if there is an arbitration clause in your contracts and/or warranty you cannot sue in most instances. So don't threaten to sue until you know for sure that you can, and will.

Good Luck.

 

[Buk1000]

While this sounds good, in general, you are mistaken about the situation.
OP is not dealing with a warranty issue. A warranty issue would apply if the contractor and OP had contracted for XYZ unit to be installed. XYZ unit was installed and then XYZ unit broke down. What has happened in this case is that they contracted for ABC unit, but XYZ unit was installed. That's a breach of contract, and the OP should deal with it as such.

You could be right but many builders' paperwork states they have the right to make substitutions, and there is seldom any wording about just how far they can go with that. (Another example of why a home buyer needs to have a good attorney review a purchase contract before the buyer signs it.) If the system meets minimum requirements and is installed right--which this poster's system does not seem to do--then often the home buyer has little recourse. Incorrect installation/defects are another matter.

 

[fozzy2]

The question would appear to be whether there was "substantial performance." The classic law school case is Jacob & Youngs, Inc. v. Kent, 129 N.E. 889 (1921). The case was over a contract specification that pipe from a certain manufacturer be used in building a house, and equivalent pipe from a different manufacturer was actually used. Correcting the discrepancy (replacing the pipes) would have required demolition of the finished structure at great expense. Cardoza wrote "...the defect was insignificant in its relation to the project." The cost of replacement is not the measure, but "the difference in value, which would be either nominal or nothing." That is certainly what the contractor is going to claim.

As has been pointed out, however, there are a lot of statutes regarding construction (particularly residential) that twist the common law. A lot of people are distraught to find that their "dream home" is not quite as they planned (kitchen cabinetry different, different bathroom arrangment, etc.) and they often have to simply lump it or pay their own way after taking posession.