Builder violated code...what now?

greenie19March 6, 2013

I wasn't sure where to put this, but since it's a disaster for us I think this category fits. My Mother bought a house that was built in 2005, but never lived in, in 2007 in Florida. We've just discovered that the tile in the shower was only set on gypsum with no water barrier, which certainly isn't up to code now and I don't believe it was up to code in 2005 either. My question is what are our options? Is there any way to get the builder to take care of this? Even though we weren't the first ones to purchase we were the first to live in it - does any of that matter? Where do we even begin? I looked through the home warranty that my Mother was given but it doesn't mention anything about a situation where they didn't build it to code so….???

All of this started when I decided to repair some of the cracked grout in the corners which I sought technique advice on another board. While removing the grout one of the tiles popped out and I discovered the problem which you can see here. Guys on that forum said that I could try and stick my loose tile back on with a construction adhesive but that the shower was essentially shot since it wasn't built properly in the first place - is that really true? Would there be a better way to patch up this problem temporarily until we gather the cash to properly fix this at some point down the line? I forgot to mention that we do not have the money for a new shower in any way, shape, or form. It was already a stretch to buy the caulk and grout to do a simple repair. We're trying to MacGyver this situation for the moment.

Lastly, should I try and do that fix before …. getting this ball rolling on having the builder take care of redoing this. Should I get it officially written down somewhere that yes, this isn't up to code before I do my patch job? Do you get what I'm asking here? I don't want to jeopardize any case I have with the builder by trying to patch this up a bit, but at the same time we need to take showers so….Any advice in this realm of things? Thanks in advance for any advice anyone can give!

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"house that was built in 2005"

it is now 2013.

the house is around 8 years old and you want to go after the builder?

There is a decent chance that whatever legal entity (corporation, LLC) that built the house does not even exist any more.

    Bookmark   March 6, 2013 at 2:51PM
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They set the tile in my shower directly on drywall with no water barrier - this isn't to code. I'm facing similar issues as presented in this video. So yeah, I think that the builder (who is still very much in business and building homes in several states), who was negligent in building this home should pay for their negligence. Sorry to disappoint you. Thanks for your advice though, have a great day!

If anyone else is able to address the questions I actually asked without giving me grief, my Mother and I would surely appreciate it. We're both living on a fixed income, so we'd be very thankful for any help anyone else might provide.

This post was edited by greenie19 on Wed, Mar 6, 13 at 17:31

    Bookmark   March 6, 2013 at 4:17PM
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Ok, I found the code from 2004:

Chapter 25‚ Section 2509‚ (3)
2509.3 Limitations.

Water-resistant gypsum backing board shall not be used in the following locations:

Chapter 25‚ Section 2509‚ (3)(ab1)

  1. Over a vapor retarder in shower or bathtub compartments.

Chapter 25‚ Section 2509‚ (3)(ac2)

  1. Where there will be direct exposure to water or in areas subject to continuous high humidity.

The drywall was put on top of a PVC barrier, then the tile on top of that. It's my understanding that that PVC is considered a vapor retarder, no? Or is there a difference between a vapor retarder and vapor barrier?

    Bookmark   March 6, 2013 at 7:40PM
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Greenie, welcome to the GW forum. To answer some of your questions lets look at the first question. It requires a legal opinion. Getting good legal advice from a homeowners forum is tough. Knowing a bit about your financial situation I would imagine paying a lawyer is not in the budget right now. I have a bit of experience with home warranties and my experience tells me that they are all different. We are not talking a new home, it's slightly used, going after the builder is going to take a long time, a substantial amount of money and a lifetime of patience going without a shower. As well what about future issues that may come up? This is the first issue you have found, are there more? I'm not going to automatically find the builder guilty, it may have been missed by their crew and was certainly missed by the inspector. Having some experience with homeownership in south FLA, I can tell you communication can be a real problem with language between the trades and the builder.

If the warranty you have in hand doesn't mention specifics in layman terms there may be something you missed in legal speak. They word legal documents so people like us can't understand it. That way we pay for a lawyer to explain in English what could have been said in the first place. Think of a person close to you that might be able to read the document and make heads or tails of it. You might have missed something.

Next thing I would do is to take a hike down to hour municipal building and talk to the building department, they have more experience with this issue than a general lawyer would. You would be surprised at how helpful some of them can be. Be there early, might be less cranky, never go after lunch or before closing.

That PVC barrier is your moisture barrier, I thought I recognized the grey material in one of your pics but it doesn't look correct, it should run up the wall at least 8" and uncut in the corners, the corners don't look correct. Did you mention the liner on the other JB forum. If the liner is good the pan is your only issue. You can get a presloped pan at your local big box store for the price of an hour with a lawyer.

As far as replacing the drywall with cement board take plenty of pictures, take a video explain yourself what is there and replace the pan. The guys over at JB will help you step by step and it won't cost as much as you think. Which brings us to another point. Homeownership is tough financially, need to sit down and create a budget where Mom has some capital for that rainy day. It's very important. Being a newer home this is probably the first issue, but things are not going to get any better. Things today are built to be disposable, that includes some building products and appliances. Mom was just telling me the other day that their microwave was on the way out and they paid big bucks for it. Heck it's only 8 years old!!!!! That hot water heater will be 10 years old in a few years and is only warrantied for maybe 7.

Before I post I have a question, have you contacted the builder? This problem may not be the first and they may surprise you. Give them the benefit of addressing the issue. Having been in business over the years I have come across customers that have gone the legal route before I even heard about a problem that could be addressed in a day. This is not a huge problem for a builder or an expensive one, you may be surprised at their response. I have been on that side of the fence, yes even 7 years latter and would replace the pan in 2 days. Reputation for business owners is huge, especially one that does business across state lines. We aren't talking about someone that does 4 houses a year I believe.

Let us know how you make out.

Good luck

This post was edited by SouthernCanuck on Thu, Mar 7, 13 at 5:04

    Bookmark   March 7, 2013 at 2:11AM
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Wow, seriously thank you SO much for this reply. Really great info. After discussing some of the replies I've received we decided that we'll probably have to pay to do this ourselves, either on my own or have a contractor come in and do at least some of the work. BUT, all of that won't be able to be done for at least six months, probably more so I'm hoping the fix I got on JB at least prevents any more structural damage.

I did contact the building department and they just told me to file a complaint. They recommended I get an inspector in the house to give the official "not up to code" stamp, but it's my understanding that that would cost almost as much as redoing the shower myself, so I'm not sure if that's going to happen, at least at the moment. I'm hoping all the documentation that I've gathered (still have to take a video!) will be enough. Otherwise they can just remove the tiles and see what's wrong.

Now the PVC barrier. I didn't even know that was PVC until the guys on JB told me. After I took the first pictures a moderator said,

"The gray material appears to be a PVC liner and it being damp is perfectly acceptable. That's your shower pan and its job is to catch and direct water to your shower drain.

If you have a moisture barrier behind your wallboard and If your wallboard is a cementitious type board, having dampness there would be normal. I'd like to see you scrape the surface of the wallboard that we see at the bottom of your photo where you've removed the tile and see if you, or we, can determine just what the material is.

I'm also concerned with the appearance of the bonding material that is no longer holding your tile on the wall. It appears that it might be removing a paper surface from your wallboard. Can you determine if that's actually the case? "

Then, someone else chimed in:

"It looks like mastic over greenboard"

I scratched at the board as asked and took some more pics and the moderator said:

"You've got a very serious problem there. You do, in fact, have tile set directly to gypsum board, as Paul guessed, with no form of water containment at all in those walls."

I did some searching, found that video I linked to and asked if this was what I was facing and JB himself said:

"Yes, that's what you have, and it's really bad. I wish I could put it in gentler language. You say the house is only six years old. If you are the original owner you can go back to the builder and ask him or her to make the repairs, which will amount to re-building the entire shower using an approved method.

Because the job was not done in an approved manner to begin with, the builder's liability does not end with the warranty period. In fact, it never ends.

At one time tile over drywall was approved, but that ended way more than six years ago. At the time your house was built the builder was required to use a better method."

Now I know my Mom's not the original owner, but we're the only ones who've lived in the house and was hoping that might count for something. As it stands we won't be getting a lawyer even if they tell me to "F*** off" because we just don't have the funds. The furthest we can go is to file a complaint with the building department if they don't do something and hope that shakes something loose, but frankly I don't have much hope for any of these scenarios. I kind of have Charlie-Brown-karma when it comes to these things, so I try to grin and bear it.

As for redoing the shower, I have a bunch of books on tiling/remodeling bathrooms on request from the library. I said on JB let's pretend I'm dumb...then stop pretending - I need to remedy that before I even think about what I'm going to do. You guys mention PVC, cement board, green board - I have only the vaguest understanding of such things and don't feel even the littlest bit confident to take on this job. While I have replaced several parts in our washing machine including taking apart the motor and putting it back together, as well as replaced parts in the fridge, along with the untold number of pieces of furniture I've assembled, I know these small repairs pale in comparison to the knowledge and skill it takes to redo a shower.

As far as the builder, that was my next step. I was never going to file a complaint until I at least lobbed a question or two about the situation to them, but I wanted to be prepared if they told us buzz off as they did for some other aesthetic problems we came across in the first week we moved in (the ceiling light fixture in the dining area is only three feet from the wall instead of in the middle of the area, so whoever is on that side of the table needs to be careful sitting down and getting up other wise they hit their head on it). My Mom's a little high strung and I wanted to have a plan of action in place to reassure her in case we got the bum's rush. And yeah, we're talking far, far more than 4 houses a year. I don't want to say their name, because I don't want to give them undue grief at this point and even then I'm not the type to waste time and energy being negative towards someone on the internet.

Anyways, thanks so much for everything. If there's anything glaringly wrong about what I've said, or taken as truth here please let me know. We're trying to take this in stride. I'm hoping we can gingerly start using the shower again next week. Thank god we have a relative close by!

Thank you so very much again! :)

    Bookmark   March 8, 2013 at 1:36PM
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" I know my Mom's not the original owner"

You likely have no claim.

You will end up spending more on attorneys hours that it would cost to rip out the defective walls and install them correctly.

Attorney's cost a lot more then tile setters.

    Bookmark   March 8, 2013 at 3:14PM
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Wow brickeyee. Thanks for actually reading my whole post and the kind, helpful suggestions. I forgot that I had originally thought that myself in the last couple of hours - whoops! I was just about to call a lawyer, thanks for reminding me!

I guess you missed the part in my post where I said,"As it stands we won't be getting a lawyer..." I know, it was kinda long. And you're so right that the builder is blameless for not building to code. How silly of me to think otherwise! I should send them a thank you note for setting our tile on drywall since now I get to learn how to build a shower!

It's good to know that genial folks such as yourself populate this forum and are around to set me straight. Well, thanks again for your usual friendly comments lacking any hint of disdain!

    Bookmark   March 8, 2013 at 6:33PM
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I want to reiterate a hearty thanks for your truly helpful and friendly suggestions. Finding a considerate voice on the other end of message boards like this can be few and far between, and I wanted to let you know that yours has been a welcome respite. You laid out options for me straight without being derisive or condescending and I really appreciate it. If only everyone on the web could be more friendly...sigh.

Anyways, I did want to thank you again for your help. I earnestly appreciate it.

Good luck to you and your family!

    Bookmark   March 8, 2013 at 6:41PM
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The unfortunate reality is that it is very unlikely the builder is going to do anything about your problem. Maybe a nice and carefully worded letter to the CEO might change that but I wouldn't hold my breath.

Are you a member of a church? Perhaps a talk with the pastor might help find a member who would be willing to donate the labor if you picked up the cost of materials.

    Bookmark   March 11, 2013 at 10:30PM
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You are most welcome, I wasn't always as congenial as I am now, I seem to have mellowed a bit with age. As well I have to keep up the myth that all us Canadians are nice. It's also refreshing to find someone that appreciates help. Some ask a question then disappear.

I believe you are in Florida, the best tile job I have ever seen was done for me by a crew of workers of Cuban decent in Pt. Charlotte, I found them by going to a local tile supplier. Not Home Depot or Lowes a small Mom and Pop outlet. Stop by a local tile store, you may be very surprised how helpful they are at saving you much earned $$$$$. What do you have to lose?

Don't be too hard on Brickeyee, he or she may not have the greatest bedside manner but sure knows what he's talking about, just tells it as he sees it. Reminds me of a fellow Canadian Kevin O'Leary on the US TV show Shark Tank and the original Canadian show Dragon's Den, they call him Mr. Wonderful but he knows what he's talking about to be sure. Met him at a book signing and he's one of the nicest guys, when he's selling books at least. Off topic but have to say Robert Herjcovic from Shark Tank is Canadian as well, he's the nice one. Need to toot our small Canadian horns now and then.

    Bookmark   March 13, 2013 at 8:52AM
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Greenie, I don't know the code there but it's a moot point this far down the road. The home was built in 2005 and you were not the party who did the deal with the builder.

It's unreasonable to ask the builder to do any repairs at this point. If a warranty issue comes up in a reasonable amount of time, the builder has recourse against the company or supplier who installed or supplied the product. The builder has zero recourse here.

Some builders allow the home buyers to do some work on their own or do a deal directly with the builders subcontractors. Who knows what went down here but automatically assuming the builder did something wrong won’t get you anywhere.

I’m sure the builder won’t touch this with a ten foot pole. Most builders worry if they give an inch on these circumstances, the property owner will want a mile. The risk to the builder is getting dragged into a never ending problem. Once the builder steps foot onto the property, the property owners can claim anything and they do all the time.

The grey material with the folds in the corners is your shower pan membrane. The drywall is green board which has some water resistance property but you still need a water membrane on top of the green board. My advice is just get it fixed because you have zero recourse against the builder.

Buying a used home is like buying a used car in many circumstances. The buyer has the responsibility to inspect for problems. If you had a home inspection when you purchased the home, most savvy inspectors will pull the trim off around the shower head and diverter to inspect for a membrane. Did you pay for a home inspection?

This post was edited by mepop on Sun, Mar 17, 13 at 13:33

    Bookmark   March 13, 2013 at 10:44PM
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Suzi AKA DesertDance Zone 9b

If you have a state licensing board, write them a letter, or get their complaint form and fill it out.

This happened to us in a house that was way older than yours, and we took that route. The board came out, looked at the damage, and made the contractor fix it for free.

Contractor's value their licenses. Hit em where it hurts!

    Bookmark   May 8, 2013 at 10:29AM
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If all else fails, you might also consider getting an estimate on how much it might cost to get it fixed, then take the builder to small claims.

    Bookmark   May 10, 2013 at 2:45PM
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Built in 2005, you have a better chance of seeing God than a warranty, winning court claim or a repair on the arm

    Bookmark   May 10, 2013 at 7:13PM
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After you 'win' in small claims court you have to collect.

This typically involves finding some asset you can attach and filing another lawsuit.

It is NOT like TV where the loser pays on the spot.

All you 'win' is a judgment (a nice piece of paper) that X owes you some amount of money.

Now you have to collect from X.

    Bookmark   May 11, 2013 at 10:41AM
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"Don't be too hard on Brickeyee, he or she may not have the greatest bedside manner but sure knows what he's talking about, just tells it as he sees it."

I agree. Not much for holding your hand, but most of his advice seems to be on the mark. Especially about wasting your money going to court going after an owner who uses different corporations (like merry go round horses) to avoid liability.

That being said I like desertdance's suggestion:

'If you have a state licensing board, write them a letter, or get their complaint form and fill it out.'

I hope the board can help or at least keep this builder from doing this to any other people.

    Bookmark   May 11, 2013 at 11:06AM
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Again 8 years old, fast track to nowhere. Suck it up and pay for the repairs. Not only that and I am guilty of this as well, we have not heard from the op in months.

    Bookmark   May 11, 2013 at 11:52AM
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