Rebuilding Decks Q&A

QUESTION

“The house we just bought has an old, partially rotted wood deck at the rear yard that we want to remove and replace with a new one. Although the deck is redwood, it is only 12 years old, and many of the deck boards are twisted and bowed. Are there any other materials that we can use instead of redwood? Someone suggested that we use pressure treated lumber or go with a hardwood like mahogany. Any suggestions?” – B. L., Richmond

ANSWER

Redwood is by far the most common decking material on the west coast because of its natural decay resistance, beauty and affordability. However, if it is not properly installed and maintained, it will deteriorate. Your letter did not go into detail about the installation of the deck, but if many of the deck boards are twisted and bowed, it was probably not installed or fastened correctly.

To answer your question about other types of materials for decks, there are actually several options for the home owner and contractor. Besides pressure treated lumber and select hardwoods, there is also plastic, vinyl and wood-plastic composites.

Pressure treated lumber is most commonly used for deck supports, girders and joists. The advantage of this material is its excellent ability to resist rot; it is even designed to have direct contact with the earth. One of the disadvantages of this wood is that it tends to crack and split, leaving splinters and a rough surface. Sometimes these boards also tend to twist and bow, which can affect the aesthetics of the deck surface. Painting and staining can prevent some of the cracking and splitting, but it must be done on a routine basis to keep the deck looking good.

Besides using pressure treated wood or redwood, you could also consider the use of tropical hardwoods. Tropical hardwoods (commonly a type of mahogany or teak) have rich colors, are naturally decay resistive, and have a high density. They are also more expensive than either redwood or pressure treated wood, and require more care and skill in the installation. For example, if nailing the boards by hand, they usually have to be predrilled. These decks also require more maintenance than other decks because the surface of the boards must be coated regularly with a water repellant to prevent the boards from splitting and turning grey.

A new alternative to wood decking is synthetic decking, decking material made from recycled plastics and wood fibers. These materials look and feel like real wood, and are a little more expensive than redwood. However, they have several advantages. These boards are impervious to moisture and will not split, crack, warp or rot. They can be worked with standard tools, and do not require staining or sealing

One of the best known manufacturers of wood-plastic composite is Trex, with their “Easy Care Decking”. This material is slip resistant and splinter free and can be nailed or screwed down. It comes with a limited ten year warranty. For more information call 1-800-289-8739.

Another type of composite material called TimberTech, a material manufactured by A Crane Plastics Company (1-800-307-7780). This material is produced in hollow tongue-and-groove extrusions that are dimensionally stable, lightweight, and fit together by hand. Because of its design, most fasteners are hidden. The material comes in a light brown color, which fades to a light grey over time.

Finally, there are several all vinyl and aluminum decking systems that are designed to interlock or snap together. These products have an integral and sometimes concealed fastening system. This can speed installation and make it easier for the do-it-yourself market. Basically, a type of track or base is screwed or fastened to the framing members of the deck, and the vinyl or aluminum material is snapped or slid into place. These materials should basically last forever, and require less maintenance than a wood deck.

There are two things to remember when choosing these alternative decking materials, cost and availability. Most of the composite and vinyl products are made back East and are not widely available on the West Coast. You should contact your local lumber supplier and see if they carry any of these materials or if they can order them. The majority of these materials are sold as “systems” with their own fasteners, clips and end caps. You should make sure that you have all material on hand before you begin to lay out or build your deck.

Discovering Wood Rot in the Home Q&A

QUESTION

“I’m getting ready to paint my house, and I’ve been patching some of the bad spots in the wood trim around the windows and at the edges of the roof. On two sides of the house, there are pieces of wood that are starting to rot. Although the wood looked okay, when I started to scrape the loose paint off it, the wood started to crumble. What causes wood to rot, and what do you have to do to fix it?” –  M.C., Hayward

ANSWER

Many homeowners are familiar with wood damage caused by rot. It can be found at the base of fence posts, roof eaves and rafters, exterior doors, exterior wood trim, or decks and patio covers. Wood rot usually occurs because of excessive moisture, and is often not visible until the wood is completely damaged. To give you an idea as to how much wood is damaged by rot, the wood industry estimates that about 10% of its annual wood production will be used to repair damaged caused by wood rot alone.

Wood rot is a term used to describe the deterioration and breakdown of the cellular structure of wood that is caused by certain types of fungus. The spores of these fungi are carried through the air, and when they come into contact with moist wood, they will attach themselves to the wood, and begin to feed on its nutrients in order to grow. The fungi releases an enzyme that actually breaks down the cellular structure of the wood into a form of food it can eat. As the fungus grows, the wood decomposes and looses its strength.

One of the dangers of these fungi is that they can grow for long periods of time before producing any external evidence of their presence in the wood. Most wood decay fungi grow only on wood with high moisture content, which is normally considered 20% or above. Wood is actually a porous material that can absorb moisture if left unprotected. Although some woods such as redwood and cedar are naturally decay resistive, under the right conditions, all wood can rot.

Therefore homeowners need to check for wood rot on a periodic basis, and take preventative measures to stop it from occurring. This should be done twice a year, in the autumn and after the spring rains. Any wood member at the exterior of the house can be subject to rot, and therefore should be inspected. However, be most suspicious of wood trim, roof eaves, and any wood close or in contact with the ground, or wood that gets repeated wetting from sprinklers.

At the exterior of a building, wood rot commonly occurs at joints between wood trim and the exterior siding or windows, at the base of wood jambs for exterior doors, wood that is contact with dirt, or on the parts of wood where water can sit and not drain away. This includes most horizontal surfaces, or top edges of boards. Although wood at the exterior of the building is usually painted, moisture can get under the paint through small cracks, allowing rot to form. Because rot can form under the paint, most of the time wood rot is not visible from the surface of the wood. Therefore it is often helpful to have a small screwdriver to be able to probe for rot, and to test the firmness of the wood.

There are two main types of wood rot to look out for. In one type, the decayed area has a brownish discoloration and a crumbly appearance. As the cellular structure of the wood breaks down, it forms a cube like pattern in the wood. The other type of rot causes the wood to have a white or yellow discoloration, with the decayed wood being stringy or spongy.

Once wood rot is discovered, it must be cut out and removed from the wood. The reason for this is that if the wood is to dry, the fungus becomes dormant and stops attacking the wood. However, once the wood gets wet again, the fungus continues its destructive course. This wetting and drying cycle continues over a period of time, until the wood becomes structurally unsound.

The best way to prevent wood rot is to make sure that all exterior wood trim, siding and roof eaves are kept well painted and sealed. Preventing water from getting into joints, gaps or separations in wood, where it can be trapped and not allowed to dry out, is the secrete to preventing rot. All horizontal surfaces and edges of wood are most prone to absorbing moisture, as well as joints between wood members. All vertical and horizontal joints between the pieces of wood should be cleaned out, and filled with a good quality exterior caulking material. Loose paint should be scrapped off, and the wood primed and painted with good quality paint.

Wood rot can also occur at the interior of the building, particularly in areas exposed to water or leakage. The source of water can be a plumbing leak, such as a water line, or water splash from sinks, tubs, or showers. Homeowners should check the base of sink cabinets, or floors adjacent to clothes or dish washers, or floors in bathrooms adjacent to the tub or shower pan for signs of swelling or discoloration.

Taking the time now to inspect and locate wood rot, will allow you to make repairs before further water damage can occur. Failure to repair wood rot when it is first discovered, will allow the fungi to continue to damage the wood, requiring more extensive and costly repairs in the future.

Property Line Setbacks, Title Company Q&A

QUESTION

“A person buys a cabin in the foothills. It was sold “as is” and there was not much disclosure about the property. After living in the cabin for two years, It was discovered that the laundry room addition to the cabin was actually built on the neighbor’s property line. The neighbor is now thinking about suing me. Shouldn’t this property line issue have been disclosed by someone? Doesn’t the title company check some sort of maps to make sure that there no discrepancies with property lines?” – D.W., Oakland

 

ANSWER

Buying a piece of property in a probate sale, particularly in rural areas, can be quite a gamble if you are not prepared to do a lot of research. When a property is sold in probate, it is usually part of an estate of someone who has just died. There are no requirements for the estate to provide disclosure information to a prospective buyer. This basically relieves the estate of any liabilities that might arise after the sale if some problem were to be discovered. This is one of the few situations in which a house can actually be sold “as is,” leaving the buyer with very little protection from non disclosure.

The title company that you received your policy form, does give you some protection, but it is specifically related to the “Ownership” of the property. Having title insurance policy makes sure that your rights and interests to the property are clear, and that no governmental or individual entity has any right, lien, or claim to your property.

California has two commonly used title insurance policies, California Land Title Association (CLTA) which insures that all items on title are revealed to affected parties, and American Land Title Association (ALTA) which further insures that if an unrecorded claim of ownership arises it will be settled or affected parties will be reimbursed. ALTA policies are preferred by most lenders to insure a deed of trust.

Title companies spend a large percentage of their operating income each year collecting, storing, maintaining and analyzing official records for information that affects title to real property. Their technical experts are trained to identify the rights that others may have to your property such as recorded liens, legal actions, disputed interests, right of way or other encumbrances to your property.

Title companies do not normally check for permits, and they would not necessarily know of any property line violations if there were no recorded notices. The maps that they provide in the preliminary title report show the boundaries and size of the property, but do not show the location of any buildings or structures. This prevents anyone from knowing if there were property line violations. The responsibilities of a title company are clearly set forth in the specific coverage of each policy. To determine the coverage that you have, you must first check the existing policy to see if it even includes coverage of building violations or property line disputes.

If it does, you then want to carefully check to see what the exclusions are, and whether or not there is a deductible. It is possible that the title company is responsible for the result of not having a permit, but each case needs to be evaluated by all parties on its own merit and the conditions in the policy

However, without knowing all of the specifics of your policy, it is impossible to say if your title company had any responsibility. If the title policy contains the new expanded coverage that has recently been introduced by CLTA, there may be some protection for you as legal owner of the property.

Effective August 1998, CLTA began offering an “enhanced” title insurance policy which includes additional coverage that were normally only offered at an additional price. Some policies offered in California now provide coverage for such things as building permit violations, property line violations, restriction or covenant violations and coverage for post policy forgeries that may occur in the future and cloud the title.

All of these enhanced coverages do have some restrictions, limitations and deductibles, but they allow the title companies to provide a higher level of service and protection for the consumer. For more information about the CLTA Policy, you can contact your local title company.

The Condition of your Home?

It’s hard to believe a new year is already underway, and this is probably the best time to invest a couple of hours in taking stock of your most important investment, your house. How much do you really know about the house you are living in? Whether you’ve been living in your house for several years or have just moved in, it is necessary to know the current condition of your house and its various components to be able to maintain it and keep it in optimum working order. Over the years, building components age and deteriorate. Think about it. Are you living with conditions now, which might affect the value or safety of your home?

The truth of the matter is that most people know very little about their homes, and this can lead to costly expenses in the future. It does not take an experienced person to realize or see that a problem exists, but it does take a conscious effort to look for them. The problem is that people can sometimes live with deteriorated conditions for years without really realizing they exist.

For example, if the dishwasher is running, do you still have enough water for a shower? Do the kitchen lights dim when the microwave oven and toaster are operated at the same time? How old is the roof? Is it water-tight? Are there any cracks in the walls or ceilings that might be an indication of building settlement? When was the last time you looked in the attic or under the house? If improvements have been made to your house, have they been made in a safe and code complying manner?

Whether or not these specific questions apply to your home, you will want to know as much about your home as possible to properly maintain it. If you do not maintain your home, you could face large expenditures of time and money when a system or component finally fails. Take some time and think about the actual condition of your home. Look around and find out what kind of shape your house is in.

The best way to begin analyzing the condition of your house is to approach it in an organized way. Start by looking at the outside, and then move to the interior. Keep a written list of the items you see, and note their condition. Once you have finished, you will have a good idea of the things that will need to be fixed immediately, or in the near future.

The exterior of your house can be divided into several categories to assess; the exterior siding, the drainage around the building, the walks, patios, and decks, and the window and doors. Check the siding and trim around the windows and doors for signs of weathering and cracking. Look at you gutters and downspouts for signs of leakage at the seams and rusting. Make sure all the water from the downspouts drains away from the building.

Step back away from the house and look at the roof for signs of missing roof covering or debris in the valleys. If the roof is wood shake, it should be serviced every three to five years and has an average life of 18 to 22 years. If the roof is tile, look for broken or missing pieces of tile.

One of the most important things you should look for at the exterior of your house is the emergency shut offs for the gas, electric and water meters. Are the shutoff valves and disconnects accessible, or are they concealed by plants and vegetation. If there were an emergency could you shut these items off?

Once you have finished the exterior, inspect the interior of the house. Inspect each room, and look at the walls, ceilings, and floors. Check the interior walls and ceilings for signs of cracking and water staining. Minor cracking around window and door openings is common, but it can also be an indication that the house is settling. Cracking in sheetrock less than 1/16” is usually not serious. However, it is important to know if the crack is existing, or new, and if it is getting bigger. Is the floor sloping? If they are new cracks, or they are getting bigger, the house may be settling with the recent rains.

Do all of the doors and windows properly open and close and are they weather-stripped? Are there panes of broken glass? Do the windows have screens?

Inspect the bathroom and kitchen, paying particular attention to the plumbing under the sinks. Many times, leakage under sinks goes undetected because of all the items people tend to store in the sink cabinets. Do the toilets flush properly, and does the water shut off when the tank is full? Toilets that continue to run, or faucets which leak once the water shuts off not only costs money, but wastes water. Finally, check to make sure that all of your smoke alarms operate.

Once you have finished, you will not only have an accurate appraisal of your house’s condition, you will also have a detailed list of what needs to be fixed at your house. With this information, you can plan your repairs, and avoid having to fix things at the last minute. In this way, you can keep your house in top condition with a minimum of effort.

To assist homeowners in this process of inspecting their home, All About Homes, Inc., has develop a free, simple and straight forward checklist called the “Home Owners Guide to a Property Review.” It walks you through the exterior and interior of your home, allowing you to inspect each of the components, and make comments. If you would like a copy of this checklist, you can either visit our website at www.allabouthomes.com, and click on Brochures, or you can fax your request to our office.

Water Under a House Q&A

QUESTION

“Over the past few weeks, I’ve noticed a strong musty smell in the living room and dining room. I looked all over for signs of moisture or leakage but did not find any. However, when I looked into the sub area the smell got worse, and I noticed standing water under my house. The water appeared about 2” to 3” deep, and covered most of area that I could see. I’m very concerned, and do not know where the water is coming from. Is it possible that this is from a plumbing leak? How do I find out, and what do I need to do?” – D.S., Dublin

 

ANSWER

A little standing water under a house is not uncommon especially after all of the rains we have been having lately. Once the soil around the house gets saturated with water, water will tend to seep under it and often go unnoticed. However, too much standing water can cause structural damage to the foundation, corrosion to furnace ductwork, wood rot to the framing members, and cause mold and mildew to grow. The amount of water necessary to cause this damage depends a lot on the type of soil under a house, the amount of underfloor ventilation, and the clearances between the earth and the components of the house.

Standing water under a house is usually the result of only two things; either a leaking water line, or from surface water drainage around the house. If it was from a leaking water line, the leak would have to be substantial, and you would hear running water in the house. It would take a few days of leaking to create the amount of water you described, and the leak would continue until the water to the house was shut off.

I suspect that the water under the house is actually the result of poor surface water drainage around your home. It is important for all homes, whether they are built with a raised foundation or on a slab, to be constructed so that the water from rain and irrigation drains away from the house. This is why most homes built within the past 20 years have all of their downspouts connected to a drainage pipe to carry the water to the curb and gutter, and why walks, patios, and planter areas slope away from the house. Builders understand the importance of keeping water away from the house’s foundation.

To determine if the amount of water under your house is serious, look into the sub area from the access opening with a flashlight. Usually, if there is enough height to the sub area, standing water is not necessarily a concern. If the water only covers a small portion of the sub area, and other areas are dry, it is not significant, and will probably drain away after a few days.

However, if the water covers a large area and is in contact with the base of any wood supports, or the furnace ductwork, then the water should be removed. The simplest way to remove water from a sub area is to use a sump pump to pump the water out. The pump must be installed at the deepest area of water to be efficient, and the water needs to be discharged away from the house.

If it turns out that there is a lot of water under the house, then consideration must be given to improving the drainage around the perimeter. A simple investigation can often determine where the water is coming from. Water can drain into a sub area from planter areas next to a house, or low points in the landscaping. Walk around the outside of your house and see if you can spot where the low points might be. If most of the water is under the rear of the house, there is probable a low point at the rear yard. Next, check to make sure that all downspouts drain away from the building by using either splash blocks, or corrugated piping to divert the water to a safe location.

Sometimes correcting the low points of drainage and adjusting the downspouts is not enough to prevent the water from infiltrating into the foundation, and other measures must be considered. The best solution for keeping water from getting into the sub area is to install a French drain on the sides of the house where the water appears to be coming in. A French drain is basically a 12” wide trench dug around a building down to the base of the foundation, and then filled with gravel and a perforated pipe sloped to collect and divert the water to the street.

Although, basic in design, French drains often require the expertise of a foundation or drainage contractor, or landscaper to install so that they operate properly. If the drain is installed too far away from the house, does not have the proper slope, or has not be installed with a filter fabric (to keep the soil from clogging the trench), a French drain will not work. Installing a French drain can cost thousands of dollars, therefore before you consider one, make sure that it is necessary.

My best advice for homeowners is to check your sub areas at least twice during the rainy season for signs of standing water. If standing water has been under the house in the past, it will leave a mud like (bathtub) ring around the inside face of the foundation, the interior pier supports, and any furnace ducting or pipes that have been in contact with the water. Find out if there are drainage issues before they cause a problem, because it is much easier to fix them when it is not pouring rain and the ground is real muddy.

Experience: Mold and Mildew

Mold and mildew were indications of leakage in wall cavity that could not be readily seen.

Experience: Family Home Remodel Management

Single family dwelling, recently remodeled. AAH assisted with getting contractor to finish the job.

Sidewalk Repair, Who is Responsible?

QUESTIONS

We just moved into a new housing development and we are having problems with the contractor fixing some large cracks in the driveway and sidewalk. The cracks were caused by trucks and heavy equipment crossing our lot to finish up work on the house next door. The builder keeps saying that the city will fix the sidewalk when the development is done at the end of the year. I called the city and they say that it is the builder’s responsibility. Who is responsible for repairing our driveway ?

“I live in an older neighborhood, and for years the tree the city planted in the sidewalk area has been causing the sidewalk to crack and lift. It has gotten so bad, that last week one of the neighbors tripped on the sidewalk and injured their hip. I called the city and they said that the maintenance and repair of the sidewalk is the responsibility of the home owner. They stated that I needed to get a permit if I take out a section of the sidewalk. Isn’t the city was responsible for the maintenance of the sidewalks?”

ANSWER

In order to understand who is responsible for the maintenance and repair of the sidewalk, it helps to know that most people’s property line stops somewhere on the house’s side of the sidewalk. In some municipalities, the property line goes right up to the sidewalk, in others it can stop a few inches or feet before the sidewalk begins. This raises the question, “If a home owner’s property line stops short of the sidewalk, is the property owner responsible for its maintenance and repair?”

The answer is yes. Although a home owner does not actually “own” the sidewalk in front of their property, they are still held responsible for maintaining the condition of the sidewalk and the public right of way. The reason is, the public right of way is not only for the convenience of others, it also benefits the home owner by allowing safe access to their own home.

Whether this right of way may ends at the inside edge of a sidewalk, is not always clear. In some developments the right of way may end two feet beyond the inside edge of the sidewalk. This portion of the right of way could be used for the installation of underground utilities such as electrical, telephone and cable. A home owner would not be able to build or erect any permanent structure, planter, or fence that may affect passage in this area.

For many years, California has required a 40 foot right of way for city streets and sidewalks. This is the minimum width of a residential street and sidewalks to ensure that vehicular and pedestrian traffic have a safe and un-encumbered space to travel on.

To enforce these requirements, the local government has the authority to control how streets and sidewalks are installed, and how they are to be maintained.

For example, before a new sub division can be built, the builder must submit plans outlining how all of the streets and sidewalks will be installed. These plans must meet the strict guidelines of the local public works department, or city engineer.

Once approved, the builder is then responsible for installing the streets and sidewalks for the development.

Usually a year after the development is completed, the municipality will inspect the streets and sidewalks. If they find the streets and sidewalks in acceptable condition, they will assume the control for their continued use and maintenance. If sidewalks are badly cracked or damaged, the local government will not accept control until corrections are made. Builders are therefore ultimately responsible to ensure that the sidewalks, driveways and streets are in serviceable condition.

In existing neighborhoods, the city also maintains control of the streets and sidewalks, and how they are repaired. If the city receives a complaint that a sidewalk is cracking and lifting so as to create a tripping hazard, they will notify the home owner and request that they fix the condition. For a crack to be considered a tripping hazard, it would have to have a gap of about one half inch, or a lift of three quarters of an inch. If the owner does not fix the condition, the city can hire a sub contractor to make the repair, and bill the home owner.

Many times in older neighborhoods, where the trees in the parking strips have caused damage to several blocks of sidewalks, the city will contract with a sub contractor to repair the entire area. When this is done, the billing for the home owner often appears as a fee on the property taxes.

Repairing a sidewalk does not always require that the sidewalk be replaced. If there is only one or two large cracks or lifts in the sidewalk, they can usually be repaired by the home owner with patching concrete, or mortar. Cracks more than one half inch should be filled with mortar and leveled off. Raises or lifting of the sidewalk more than one half inch high should be bridged with the patching compound to create a smooth sloping surface.

Cracks or lifts larger than these may require that a section of the sidewalk actually be replaced. This will require a permit to ensure that the work will meet the local guidelines. Before attempting to perform any major repairs to a sidewalk or driveway, the public works department or city engineer should be consulted. They can answer any questions that you might have and will usually provide handouts and drawings outlining their requirements. They will also be able to tell you if there are any special programs through the city that may share in the costs of repairing or replacing damaged sidewalks.

SB 800, Part 2, Legal Limitations

When Senate Bill 800 was passed, the intent was to create a bill that would benefit both builders and consumers. The bill was designed to control to the soaring costs and occurrence of litigation involving construction defects. This bill affects newly constructed homes, town homes, and condos sold after the first of January 2003. One of the most controversial parts of the bill that will have the greatest affect on new home buyers is the fact that the bill establishes new statutes of limitations within which a claim for a construction defect must be made.

The new statutes of limitations contained in this bill are not all inclusive in terms of what they cover. Rather, they have been designed to apply to only specific components, under certain conditions, and for only stated periods of time. While these new statutes of limitations will be offering relief to builders, manufacturers and insurance companies, they are going to impact a homeowner’s ability to seek relief from construction related claims, as well as limit their ability to discover defects. Let me explain.

SB 800 requires several different specific periods of warranty coverage to protect the interest of the new homebuyer. The most basic coverage builders must offer is a minimum one year express warranty covering the “fit and finish” of certain building components. This is similar to the one-year warranty builders are offering now, yet it is limited to only the cosmetic and finish items in the house.

There are strict time limitations contained in the bill which require builders to be responsible for certain construction defects for up to a ten-year period. Although the ten-year time frame is similar to the previous California statute of limitation for latent (hidden) defects, SB 800 specifically lists categories of items that would be covered. These categories include the most litigated issues involving new construction; water penetration through the exterior of the building (siding, roof, windows and doors), structural issues (foundations, framing), soil issues (movement, settlement, drainage), and fire protection issues.

With regards to water penetration the bill expressly states that water shall not pass beyond, through or around any windows, doors, roof, decks, balconies, flashings, or trim of the building. Foundations, slabs, patios, walks, and drainage systems, installed as part of the original construction shall not allow water, vapor, or soil erosion to enter or come in contact with the building so as to cause damage to another building component.

The provisions governing structural and fire protection issues state that all structural components and foundations are required to be constructed according to the wind, fire, and seismic design criteria set forth in the code adopted at the time of construction, and shall not cause the structure to be unsafe. The requirements for soil basically state that soil shall not cause the ground upon which the structure is built, to become unusable for its intended purpose, and shall not allow damage to be caused to other portions of the house.

While these provisions of SB 800 provide much protection for the consumer, the particular provisions for the plumbing, mechanical, and electrical systems, there are substantial limitations on the provisions for walks and patios, landscaping and drainage systems, and manufactured products (windows, doors, fireplaces, plumbing and electrical fixtures, etc.).

The plumbing, mechanical, and electrical systems are required to operate properly and not impair the use of the house, or cause an unreasonable risk of fire. However, no action is allowed for defects in these systems after four years from the date of the original construction. This language suggests that these systems only need to be designed and installed so that they remain serviceable for a four-year period, which is a small percentage of a house’s normal life span of 50 to 75 years. Changing or repairing these systems because of material or installation defects can be expensive, disruptive to the structure, and should not really be necessary during the normal life of the house.

Paint and stains shall be applied so as not to cause deterioration to the building surfaces for as long as the manufacturer warranties them, yet no action can be brought after five years. Installed irrigation systems and drainage are required to “survive” for only one year, except that a claim can be made within two years of the close of escrow.

Finally, there is a “catch-all” clause that states the provisions in the bill are intended to address every function or component of the building, and if there is an issue that is not specifically addressed by these standards, it shall be actionable if it causes damage.

Also, if there is no representation of a “useful life” for a particular manufactured product, then the useful life will only have to be one year.

Anyone reading through SB 800 will realize that the time frames to file a claim for a construction defect are not as clear or specific as the bill intended. The fact that the bill contains some vague language, sets numerous warranty periods with various restrictions, and requires specific action on the owner of the building to maintain the building, will change how construction related issues are resolved, or tried and defended in court. A homeowner who is not familiar with the provisions of this bill could be at a definite legal disadvantage in trying to resolve a dispute involving construction defects.

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.