Construction Workmanship Concerns Q&A

QUESTION

“We just bought a new house and we’re having trouble with the builder correcting several things that are wrong. There are problems with the exterior paint coverage, scratches on the cabinet and tile installations and the finish on all the woodwork and doors appear to be sub standard. We have contacted the builder several times and their response is that there is nothing wrong. What are the requirements for workmanship to be acceptable.” –  T. & C., Alamo

 

ANSWER

You have touched on a subject that many new home buyers are asking, “What constitutes an acceptable level of workmanship?” While there is no one place that you could find all of this information, most of it is available and is usually based on common sense.

Every aspect of construction has specific standards and requirements that dictate what an acceptable level of workmanship is. It can be found in the texts for union and trade schools, as well as the standards specified by manufacturers, designers and architects.

There is even specific language in the various building codes that dictate what steps are necessary for work to be considered acceptable.

For example, acceptable workmanship for painting a door would be to have the door sanded and primed, and then painted with a finish coat of paint providing a smooth, uniform surface with no voids or brush marks.

Does this mean that if there if one little brush-mark or slight unevenness to the paint in a particular location, the whole door needs to be repainted? No. If the imperfection is not obvious, and does not affect the inherent characteristics of the object, it is usually considered acceptable. The general rule of thumb for deviations to a finished surface is if the defect is visible within six feet, under natural light, it usually does not reflect industry standards.

Complaints for workmanship are on the rise and it is partly because of the hot construction market. In a market where houses are going up thousands of dollars each month, there is a willingness of some builders and contractors to sacrifice quality for cost and speed of installation. Workmanship issues can also be the result of poor jobsite supervision by a builder as well as a lack of in-depth trade knowledge and skills of the workers. As a consequence consumers are having to accept less than standard levels of workmanship.

A few weeks ago I was asked to inspect a newly built home two months after the buyers moved in. They began noticing problems with the finished condition of the house. While most of the complaints were cosmetic in nature, the buyers did have some legitimate concerns.

The biggest problem had to do with the finish painting and the installation of the cabinets in the kitchen. The finish painting had voids in its coverage and some walls were uneven in color. The enamel finish on the wood trim and doors had some obvious brush marks and paint runs. The cabinet installation had missing pieces of trim, the seams and joints that were not tight, and several of the cabinet doors did not match in color, or pattern of wood grain.

The builder’s initial response was that the quality of workmanship in this home was consistent with the standards of production housing and that the buyers were being too “picky”. He also stated that most of these items were not mentioned on the final walk-through, which meant that the buyers accepted it.

After inspecting the property, I agreed with the buyers that the workmanship was not acceptable and that it did not reflect standards of the industry for the reasons that I have mentioned above. We then arranged to meet with the builder at the property. It wasn’t until each item was pointed out and discussed, that the builder was willing to correct these conditions.

Most contractors and builders want to take care of any legitimate complaints that the consumer might have. Yet sometimes they are asked to correct things that really don’t need correcting or that are unreasonable. This is when most of them draw the line on what they will do for a customer.

It sounds like you have some legitimate complaints that need to be resolved with your builder. You might want to call in a couple of painters and tile contractors to get their opinions on the workmanship in question. You will need to establish that, indeed, the workmanship does not reflect acceptable levels.

Ask the builder in writing to meet with you at the property and discuss each item in question and determine how each one can be resolved. More than likely he will be willing to cooperate if your complaints are reasonable.

SB 800 – New Rules for Builders – Part 1

If you purchased a new house after January 1, 2003, or are planning to buy one, Senate Bill 800 affects your rights as a homeowner, and the rights of a builder to correct deficiencies discovered in new construction. Senate Bill 800 was passed on August 31, 2002, and signed into law by Governor Davis on September 21, 2002. SB 800 applies to all condos, town homes, and single-family residences that close escrow after the first of this year.

This bill is significant because it makes major changes to the laws governing construction defects. Among other things, the bill eliminates the four and ten year statutes of limitations for patent and latent defects that homeowners now have to bring suit against builders. It attempts to define defects by establishing specific standards that components of a house must meet to be considered serviceable, and it creates a detailed process that both the builder and home owner must follow before litigation for defects can occur.

Up until December of 2000, a homeowner could sue a builder for construction defects as long as they were discovered within the four and ten year statute of limitations. However, in December of that year, the California Supreme Court handed down a decision in a case known as Aas v. Superior Court (2000, 24 Cal. 4th 627), that stated a builder was not responsible for construction defects unless the defect caused personal or property damage. This was a major setback for consumers and gave builders a legal defense to avoid being responsible for defective construction.

Senate Bill 800 attempts to change the effects of the Aas decision, and in the process creates an uncertain legal landscape for both builders and consumers. While the bill was drafted to provide more protection for both builders and homeowners, builders, insurance companies, and attorneys have clearly influenced its final form.

To understand the legal implications of SB 800, let’s look at what the bill entails. First, this bill states that any action seeking damages for construction defects against a builder, subcontractor, product manufacturer, or design professional, will have to comply with the requirements and time frames of this bill. The bill also says that a homeowner cannot file for a claim of defect(s) until the builder has had a chance to inspect and repair the alleged deficiency. These two requirements benefit both the builder and the homeowner.

In order to establish a claim, a homeowner must submit a written notice to the builder stating the defect(s). Then, the builder has 14 days to schedule and complete the initial inspection of the defect(s). If destructive testing is necessary, repairs must be done within 48 hours, and the costs borne by the builder. If a second inspection is required, it must be performed within 40 days of the initial inspection. After the defects have been substantiated, the builder, subcontractor, or manufacturer has 30 days to make an offer to repair the problem. These specific time periods are so restrictive that they could actually end up delaying the process and be argued by the builder or owner in court.

If the homeowner does not want the builder or subcontractor to actually make the repair, they can request up to three additional contractors to bid the repair of the defects, and then select one to perform the work. The builder would then pay the other contractor for the repairs. The builder is also allowed to offer a cash settlement in lieu of a repair. The bill also states that every effort shall be made to complete the repair within 120 days.

Under the provisions of this bill, the builder is not be responsible for defects or damages resulting from an act of God or nature, an alteration or wear and tear, a homeowner’s failure to maintain their home, or their failure to minimize or prevent damage from occurring. SB 800 puts specific responsibilities on homeowners to perform detailed maintenance (as provided by builders and manufacturers), and exercise care whenever modifying or repairing their homes. If an owner fails to properly maintain a component and damage occurs, the builder may not be responsible. Yet there is no language in the bill stating what normal maintenance is, or what specific duties an owner has to keep his or her home in good repair.

So what actually constitutes a defect? There are over 45 standards stating how certain components of a building shall function. The descriptions of the standards are very generic, somewhat vague, and essentially state the obvious. For example, the standards for components preventing water intrusion (exterior siding, windows, doors, roofs, foundations) state that the component shall not allow unintended water to pass beyond, around or through its designed or actual moisture barrier. What constitutes unintended water?

Another example of vague language in the bill is the standard for foundations, retaining walls, and other concrete surfaces, which states that there shall not be substantial cracking or vertical displacement. How much is substantial cracking or vertical displacement, one half inch, or two inches? Right now, there are no clear answers, and each situation would have to be judged separately. Without defined and measurable standards, builders and owners may not come to agreement on what really needs to be done to correct a defect.

While the standards attempt to define construction defects, they are not the panacea that the legislature had hoped for. To make matters worse, SB 800 has dramatically changed the statute of limitations within which various components are to operate properly, potentially compromising the quality of new construction. In my next column I will discuss the changes in these limitations, and what affect they will have on buyers of new homes.