Building Code Defects – Hiring Attorneys to Win Court Battles
You are going to need more than the building code to win your court fight. Great photos and the testimony of several hired gun experts may also be necessary.
DEAR TIM: My husband and I are battling with our builder. He is not responding to our repeated requests to fix all of our warranty items. When workers do show up we get more poor workmanship and excuses. We are thinking of hiring an attorney. Will we prevail if we go to court? What is involved in trying to extract justice through the legal system? Are there ways to increase the odds of winning in court? Pamela D., Scottsbulff, NE
DEAR PAMELA: If it is any consolation, you are not alone in your war. Thousands of homeowners like you are victims of a robust economy that is causing an enormous shortage of skilled workers, experienced building project managers, and seasoned builders. Expensive new homes and large remodeling projects can be peppered with poor quality work and sub-standard materials. The frightening thing is that the process feeds on itself. Entry level employees in the building trades exposed to these poor practices are conditioned to think that they are doing things correctly.
Builders who ignore complaints make a big mistake. Instead of hiding from problems they should run directly at them. Imagine if your builder would have fixed every problem to your complete satisfaction. You would probably become his top salesperson. His arrogance and ignorance has now made him your number one enemy. You may be able to win your war, but there are hundreds of hidden land mines littering the battlefield that you must avoid. Be prepared for costly tactical delays, legal motions, builder bankruptcy, expert reports that don't necessarily support you to the highest degree, etc.
If you decide to enter the traditional legal system to extract justice in this matter, understand that you have joined a high stakes poker game that can last for years. I am called upon frequently to act as an industry expert in cases like yours. The fees charged by the attorneys and experts in the early stages of the legal process can often exceed $5,000.00. A difficult case with many defects and issues can swallow well over $10,000.00 in fees long before you would actually appear in court!
You first need to calculate the extent of your current damages or losses. If the outstanding warranty work can be repaired by quality craftspeople for several thousand dollars, it just might be a better business decision to have the work done by others and consider the money a tuition payment to the College of Hard Knocks. Unfortunately most people in this situation don't think clearly. They are blinded by their desire to inflict an equal or greater amount of pain and misery on the negligent builder.
Certain states have laws that allow a consumer to extract legal fees and often double or triple damage amounts from the builder if the consumer can prove beyond a reasonable doubt that the builder intentionally knew of the defects or knowingly performed work that is in violation of the building code. If your warranty problems include many of these situations, then you need to discuss this possibility at the first meeting with your attorney. Keep in mind that you have to foot the bill for the entire legal process and still might not get the money even if you win. The only guarantee in this game is that you will be writing sizable checks each month to your attorney.
To enhance your chances of victory you must choose a brilliant attorney. You want one who is seasoned and has fought many of these battles. Interview different attorneys and ask them about their records. Ask for proof that he or she has handled cases similar to yours. Inquire about the total cost of the services in each case and how the matter was finally resolved. Keep in mind that many lawsuits get settled just before the trial date or on the courthouse steps.
Your chances of winning in court or in a settlement can be significantly improved if your claims do not include defects that are subjective in nature. In other words, your expectation of a professional paint or drywall job may be far different than that of the judge or jury. I have found that the strongest cases include defects that are clear cut violations of the building code. If you can prove that foundation footers don't exist where they are supposed to be, that the staircase design and width do not meet code, that vital fire stopping in walls is missing, fireplace and chimney design flaws, etc. then you just might be able to get the builder and his attorney to yelp "Uncle!" early in the proceedings.
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