Should we get a lawyer??

holcombe3August 5, 2014

Ok, we have 2 separate situations going on with our new construction home where I am at loss as to where to proceed. I will ask about one situation first. When our $6,000 front door was installed, our builder noticed it wasnt lining up right. After inspection, he realized one door was warped and immediately contacted the company we bought the door from. We were told another door was ordered for us. After waiting 3 to 4 months, the door finally came in and when they came down to install it, they had ordered the wrong one! So back it went and the waiting game started all over again. We have been living in the house for about 4 months now and am still waiting on this door to come in before we ask the painter to come back because he was waiting until it was warm outside to paint our columns and we were going to have him do the columns and door and everything at once. So I messaged my builder today asking for any updates and told him I wanted to try to go ahead and get the painter back down before it got cold again. He said that he has found out that the people we ordered the door from (garland wholesale) has went out of business and the people they ordered the door from refuses to give us another door because garland still hasnt paid them for the first one even though we have paid garland for it. So we have paid for the door but garland hasnt paid their bills...So what should we do? I feel like hiring a lawyer will cost us more than what the door did

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1. You should always hire an attorney to review your construction contract at the beginning of your project /before/ you sign it. You should hire an attorney to review your architect's agreement /before/ you sign it. Same with structural engineer, and anyone else providing significant service. Our attorney found a clause in the engineer's contract that limited his liability to the amount of his fee! The engineer wasn't an attorney and was most likely using the language supplied by his own attorney and was happy to change it. Even if you can't always change the language in your favor an attorney can explain to you what the trade-offs are. Attorney fees for contract review are pennies on the dollar compared to architect and construction costs. It boggles my mind that so many people enter into the biggest purchase of their life effectively blind to what they're agreeing to.

2. A good attorney should have a free consult with you and tell you how much their assistance will cost you, and whether or not it's worth it. Most disagreements never reach court. A good attorney can guide you to negotiate, or negotiate on your behalf (sometimes receiving a strongly worded letter on LLP letterhead is sufficient to motivate people to do the right thing).

    Bookmark   August 5, 2014 at 7:32PM
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If your contract is with Garland and not the door manufacturer, you would normally have no remedy other than to line up as a creditor of Garland. It's called privity of contract. Your deal is with the intermediary, not the manufacturer of the item.

If you want to be sure of your remedies, if any, you can always see a lawyer for confirmation.

A couple of times I just missed being stiffed, as I was the last customer to receive a new kitchen and in the other case a custom Scarlett O'Hara staircase from companies that then went bankrupt. After that, I've done credit checks on suppliers and always limit my deposits to a maximum of 50%.

    Bookmark   August 5, 2014 at 7:35PM
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If the company that went out of business has declared bankruptcy (which is what usually happens), you can only file a claim and hope the company had enough assets that in a year or two you will get a check for some portion of the amount you lost. But that might be difficult if you have to prove the door was worthless when you received it.

Where the lawyer would be helpful is in determining if you or your general contractor was responsible for ordering the door from the wholesaler. If your GC was responsible, he may owe you a replacement door.

    Bookmark   August 5, 2014 at 7:49PM
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Ok, thanks for the advice and info! Now for the 2nd and more larger problem. We built a 7500 square foot house. Nearing the end if construction we noticed some Sheetrock screws protruding beyond the surface if the wall. My GC patched them and repainted. As construction was ending we noticed they were on every single wall and ceiling. Essentially every screw that had been used had done this. It is more noticeable in some rooms than others depending on the paint color. Our GC brought in reps from our building supply company, Sheetrock rep, and mud rep. They took a sample of the Sheetrock and each rep said it was not their product that was defective. All the reps and the GC agree they have never seen anything like this and have no idea what could have disused it. Our lumber was kept in the dry and went up pretty quickly after receiving it. We finally got in touch with the general manager over the building supply co. He sent out certified letters to everyone wanting a response within 10 days and we got nothing. So, this is the email we just received:
Mr Holcombe,

I received a call from the Certainteed Representative Terry Jones, on July 31st, 2014, inquiring as to why you as the end user were not notified of their findings in regard to your sheetrock / drywall complaint. I inquired as to why Certainteed would not provide a formal finding to you, the end customer or your contracted installer. Mr Jones stated that is was corporate policy for them not formally notify a homeowner of the results of a complaint and that they had already issued a response in regard to the complaint to their wholesale supply customer Johnson Products. I inquired with Mr Jones whom you would need to contact from his company if you wished to peruse further action and he said that no others person or persons were available.
As I have communicated with you in prior emails and via the telephone, I have tried to get answers to bring your claim to some type of resolution, but as seen from my notes during my conversation with Mr Jones, I can not seem to find any answers for you. I have not been at a crossroads where a manufacturer would not at least provide a technical analysis to the end user or supplier with regard to a claim, other than we took a sample and it is not our issue. Please feel free to contact me, but I feel I have hit an impasse in regards to your claim.

So as u can see we are very frustrated! Again, is our next step a lawyer?

This post was edited by holcombe3 on Wed, Aug 13, 14 at 12:12

    Bookmark   August 5, 2014 at 9:59PM
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Wow, that is so frustrating with your sheet rock and door. I hope it can be resolved.

This post was edited by aimless07 on Tue, Aug 5, 14 at 22:34

    Bookmark   August 5, 2014 at 10:32PM
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    Bookmark   August 5, 2014 at 10:44PM
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Certainteed...why am I not surprised?

They just settled a class action suit on their fiber cement siding.

I wouldn't buy a screw from them.

Here's a old thread I found simply by googling re: c/o Sheetrock issues. This appears to be a pro board of some type.

Good luck..hope you can come up with a resolution.

Here is a link that might be useful: Link

    Bookmark   August 6, 2014 at 12:30AM
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Sheetrock is a brand name for a particular manufacturer's gypsum board--not a synonym. Using Sheetrock for decades I have not had a problem.

Screw and nails pops are typically a matter of the wood framing drying. Under the mandatory government warranty programme here, "pops" are not even a warrantable repair, though builders generally offer to patch them after a year or two, but not repaint the walls.

However, if every wall were covered in "pops" and/ depressions when the house was ready for delivery, I'd sure be calling somebody back. And likely there would still be a mechanics lien holdback to give some urgency to their response.

I take it this is not the case of using a Level 4 wall finish and then applying high sheen paint in dark colours.

    Bookmark   August 6, 2014 at 1:22AM
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What is important to know is the moisture content of the framing lumber when it was installed. Keeping it covered and off the ground is not enough. Your GC should have been required by the specification to measure the MC and verify that it met the maximum MC in the spec. I don't know of any other way to avoid nail pops.

You might ask the GC or the lumberyard what kind of lumber was used.

Green lumber is air-dried (AD) or surface-green (S-GRN) with an MC of 19+ and needs to dry more before drywall is installed.

Kiln-dried (KD) or surface-dry (S-DRY) has an MC between 16 and 19 percent which is adequate for drywall in some climates.

MC-15 lumber has an MC of 15 or less and is closer to the MC the lumber will eventually reach in most climates.

    Bookmark   August 6, 2014 at 9:13AM
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Don't be so quick to lawyer up. Unless it's a single nasty letter, it can end up costing way more than just paying to fix the issues.

    Bookmark   August 6, 2014 at 9:40AM
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Your GC should have been required by the specification to measure the MC and verify that it met the maximum MC in the spec.

Sleeping on this, I think Reno8 has hit it on the head. Occam's Razor: The simplest answer is usually the right one.

All the reps and the GC agree they have never seen anything like this and have no idea what could have [caused] it.

Blah, blah, blah. I hate to tell you I've been hearing this for decades now, every time some trade effs up.

Instead of relying on all these people who stand to pay if the fault is theirs, perhaps time to get your own expert who works for you.

And for those interested, see the link from the Canada Mortgage and Housing Corporation.

Here is a link that might be useful: On-Site Measurement of Moisture in Wood Building Materials

    Bookmark   August 6, 2014 at 10:59AM
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Ok, here is an update. Our GC decided to pay for the door himself, although he is trying to get it at a reduced price since they sent us a defective door the first time. I feel bad that he is having to foot the bill, but we have already paid for the door once. Also, we have an appointment Wednesday with a lawyer for the Sheetrock. We are just going to see if he thinks it is worth us pursuing. Thanks for the help and info!

    Bookmark   August 7, 2014 at 4:11PM
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We met with the lawyers today. They recommended that we talk to the GC about filing this on his insurance. They could not believe that he had not offered that option to us yet. They said if we sued then they would list the GC first and then the others in the lawsuit. They charge about 175/hour and said it would cost us approx. $15-20,000 in lawyer fees. So my husband is going to talk to the GC today about filing it. Lets just hope he has insurance!!

    Bookmark   August 13, 2014 at 12:16PM
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You hired a GC you didn't know whether they were bonded and insured?

    Bookmark   August 13, 2014 at 2:34PM
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Who says the door is warped? Has anyone applied an 8' straightedge to it? This could be perfect door installed improperly.

This post was edited by Trebruchet on Wed, Aug 13, 14 at 17:55

    Bookmark   August 13, 2014 at 5:54PM
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Sophie Wheeler

Nail pops exist in every single new construction project there is. It's not uncommon. It is not remotely worth getting your knickers in a knot over. You just wait the 10 months that everyone else does to make sure that most that will occur have done so, and then your builder fixes them. Touchup is on you though.

    Bookmark   August 13, 2014 at 8:16PM
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If all of this work was in the GC's contract, he should face up to his responsibility and you should not feel sorry for him. This is what he does for a living and is part of his cost. He should carry a contingency to cover such problems and insurance for when the cost is excessive. His contingency and his insurance were effectively paid by you in the contract amount.

An owner effectively pays for everything that takes place on-site on a construction project but an owner should never have to pay twice. Feel sorry for yourself because you should not have been dragged into this problem; your GC should have taken care of it without your involvement. You're not building the house; he is.

When a problem occurs on a project the first thing for the homeowner to do is ask the general contractor what he intends to do about it. Don't get involved further until the GC has given you an acceptable answer. If you get involved before a solution is found, you will find yourself usurping the role of others.

    Bookmark   August 13, 2014 at 8:21PM
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Hollysprings-this is something that our "knickers should be in a knot over". This is a 7500 sq ft house and this is not typical nail pops. Every single screw on every single wall and ceiling is protruding. I don't think you would be happy to shell out an additional $20,000 to have the house repainted.

Trebuchet- yes we have used a straight edge and a rep from the co came out when we originally installed the door and agreed it was warped.

So, our GC is actually a family friend. We live in a very small community and he has built most of the houses in our area. We made sure he was licensed, but mistakenly assumed that being a licensed contractor means you carry insurance. We are a young couple and obviously have no previous experience with building. After talking to him today, we learned that he does not in fact have insurance! So, he is going to talk to the Sheetrock people to see if it something they will be willing to file on their insurance. We can't afford the lawyer route and we can't afford to pay ourselves to have it fixed.

    Bookmark   August 13, 2014 at 10:55PM
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20K can buy some quite nice scaffolding and a lot of rollers and paint.

    Bookmark   August 14, 2014 at 11:07AM
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Every time you have a contractor step onto your property to do work, demand a copy of their insurance certificate. When your lawyer reviewed your contract with your GC, the lawyer should have checked for insurance coverage, and requested copies of the certs.

    Bookmark   August 14, 2014 at 11:28AM
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There has to be a reason for all of the drywall pops and the article below offers some logical reasons why this might happen.

Here is a link that might be useful: Drywall Pops

    Bookmark   August 14, 2014 at 8:46PM
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I would absolutely get a lawyer... I agree with caben

    Bookmark   August 15, 2014 at 11:43PM
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Well here is my feeling, the "GC" is a family friend, who now it turns out does not even carry the insurance he should required to carry. I think from your posts (and I could be wrong) that your in a fairly small area. If his reputation matters to him and especially him being a "family friend" he should want to do the right thing and fix his job so he can hopefully get more work locally. Hire a lawyer, spend 15-20k to sue him, you win and get a judgement. Now what, he did not care enough to do the right thing prior what makes you think he is going to pay now? No he is going to go bankrupt and out of business now your out the repair AND the lawyer fees. So what did you gain? Best bet is to try like hell to work it out and keep it away from lawyers because once they are involved nobody wins! Just my .02 cents......

    Bookmark   August 16, 2014 at 6:34AM
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