What would you do in this situation?

[jlindy]

What a crazy day! I'll give you the short version. :wink: Basically, my wife and I wanted to move into a new house a few months back. We looked and looked and finally agreed upon building a new house in a subdivision near our previous house. (we wanted something that backs to trees with some privacy) We sold the house we were in and put the % down right away on the new house so they would break ground between closing on the old house. Since it would take about 6 months to complete, we had about a four month gap, so we ended up moving in with family until the new house is completed. We are now about three months away from moving in and the house is now fully framed with roof and everything.

Here is the problem. We contracted for a nine foot foundation pour so that when we finished the walk out basement, the ceilings would be higher and not come close to your head like the eight foot pours do. Come to find out today, that the builder made a mistake and poured the foundation with the eight foot specs and not the nine. There is NOTHING that they can do about it now and our resale value has been greatly decreased in our opinion. I am sending the contract to a lawyer friend of mine, but I have to believe that we can absolutley get out of the contract without penalty and get all of our money back. This makes us sick to think about. I don't understand how something so important could be missed. Anybody have any solutions or advice? Here is a pic of how far they are with the house before they even realized their minor mistake....

 

[ctnsupra1]

First of all, sorry for you troubles. That's truly a major setback you've been dealt. You did the right thing though contacting your lawyer. If it was in the contractual agreement and it was done incorrectly, then I do believe you have a strong case against the builders. You might have to have an independent architect/builder come in to verify that it was done incorrectly. Something like this only occurs when people are careless. Many homes are built on an 8 footer and I have seen some of other builders (i.e. competitors) get lazy and figure on 8 feet when another length was specified.
I hope the issue gets resolved and you get all of your money back and maybe even reimbusement for the lost time. Best of luck to you and take care.

Conor

 

[neuralpathways]

Maybe I'm missing something......I see no basement. Especially no walk-out basement. Considering the grade of your property, there's no possible way to have a walk-out.?.? Are you considering the garage as the basement? Please help me to understand your question.

In any case, if you didn't get what you signed on for, and the builder is not willing to return the difference in FMV of this 8' vs 9' argument, then you should most definitely call your atty.

 

[jlindy]

Maybe I'm missing something......I see no basement. Especially no walk-out basement. Considering the grade of your property, there's no possible way to have a walk-out.?.? Are you considering the garage as the basement? Please help me to understand your question.

In any case, if you didn't get what you signed on for, and the builder is not willing to return the difference in FMV of this 8' vs 9' argument, then you should most definitely call your atty.

The property slopes down in the back so there is room for a walk out. I have attached a pic so you could see what I am talking about. There is no need to verify the 8 foot vs. the 9 foot because the builder is the one who pointed it out and it is clearly written in the contract.

I don't know how I would ask for lost time and how you could put a value on that. What could I ask for? I am just worried that they aren't going to even let us out of the contract. They are talking about trying to move around hvac so that the head clearance in the basement is better. Even if it is a few inches better, so what, it still isn't what I contracted for. :frown:

 

[Russ]

There is NOTHING that they can do about it now and our resale value has been greatly decreased in our opinion. I am sending the contract to a lawyer friend of mine, but I have to believe that we can absolutley get out of the contract without penalty and get all of our money back. This makes us sick to think about.

IAAL and this post is intended to inform, not advise.

First of all, nothing is unfixable. The existing basement floor can be removed, then excavated to sufficient additional depth and a 9' floor poured. I was going to do this in my house but it's a very expensive process, which is why your contractor is saying it's impossible. He doesn't want to do it.

You could receive a price abatement equal to either a) the cost of remedying the error or b) the difference in property value caused by an 8' basement instead of the 9', or c) the right to cancel the contract or d) the builder will have to fix the basement. The answer(s) depend(s) on what's in your contract, the law in your jurisdication, whether the defective basement is considered a material breach of the contract, and the actual cost of remedying the error. Your attorney will be able to advise you on this.

Get some estimates from other masonry contractors to determine the cost of fixing the basement.

I would document everything going forward i.e. the date you notified the contractor about the error, what was said, who you spoke to, take pics of the basement with a ruler in the frame showing the height, etc.

Good luck...

 

[NSXLNT]

Agreed, a contractual error has occured and some sort of reimbursement should be forthcoming. Some thoughts, however:
Why is this a deal killer?
Why are you basing your decision on what you are (hoping)future resale value might be?
Are/were you planning on living in this house for some time, or planning to turn it over at a profit?
Was the basement supposed to be finished by the contractor now, or was this planned for a future time?
Obviously, you and your wife like the location, the lot, the neighborhood, etc.
And you certainly must like the design of the house, basement ceilings excepted. Seems to me that you now have plenty of leverage to save yourselves a lot of money on this house, which I would expect should make up more than enough for any short term gains in resale. Unless I had a specific need for the nine foot ceiling in the lower level, I would look at this as if I had just won the lottery. The GC should have caught this, and it is ultimately his responsibility. Where was your architect through all of this? Seems like he dropped the ball also.

 

[Cairo94507]

I agree with Russ and NSXLNT -this case is all about identifying your damages (money) to resolve this situation. This is IMO an opportunity to get the house you dreamed of, w/the exception of the 8' ceiling in the basement, at a great price. Let your attorney work this to identify monetary damages. If your attorney is not experienced in construction, contract and remedies law, then find one who is. This is a good case to save you some serious money I suspect. Good luck.

 

[jlindy]

Agreed, a contractual error has occured and some sort of reimbursement should be forthcoming. Some thoughts, however:
Why is this a deal killer?
Why are you basing your decision on what you are (hoping)future resale value might be?
Are/were you planning on living in this house for some time, or planning to turn it over at a profit?
Was the basement supposed to be finished by the contractor now, or was this planned for a future time?
Obviously, you and your wife like the location, the lot, the neighborhood, etc.
And you certainly must like the design of the house, basement ceilings excepted. Seems to me that you now have plenty of leverage to save yourselves a lot of money on this house, which I would expect should make up more than enough for any short term gains in resale. Unless I had a specific need for the nine foot ceiling in the lower level, I would look at this as if I had just won the lottery. The GC should have caught this, and it is ultimately his responsibility. Where was your architect through all of this? Seems like he dropped the ball also.

My wife's mother works for a custom home builder who builds nothing less than 1 million dollar homes which is a lot for St. Louis. He said that the error was a HUGE mistake and that you can't put a value on it. He said that under no circumstances would he take the house with an 8 foot pour because that is something that he regrets most in his current house. He thought no less than 10% off the house should granted if we really wanted to keep the house.

It could be a deal breaker because when you have the standard 8 foot pour, when you finish the basement, you have a very low ceiling in order to get around all the duct work and hvac. That is a huge turnoff in this area especially for walk out basements. The nine foot pour raises the ceiling enough where tall people aren't hitting their heads. The extra foot is an expensive option all by itself, but it loses more than just the cost of the option when you try to sell it. We were going to finish the basement as soon as possible and didn't plan on turning the house over.

The builder sold the land and the plans/design of the home they contracted to build, so they are the architect too. I do agree that this could be a blessing whether it be find another house, or get a lot of money off of this one. However, if we decide to keep it and come time to sell, I don't want to regret anything if we have trouble selling the house because of extremely low basement ceilings.

 

[T Bolen]

Sorry for your grief. Home building can be very stressfull due to the worries over things like this. I have built my home and am presently remodleing our lake house so I have some building experience. If you like the house, other than the ceiling problem, try to work out a solution with the builder. He may be willing to trade you some premium upgrades to mitigate the problem. Do not threaten him with an attorney now - unless you want to cut and run. Your relationship during the rest of the build is vital to the quality of the build and his response to other issues. If you come across as a jerk that wants a ton of money for this error, then you will not be high on his list to correct other problems. And there will be other problems.
There are many ways to route a/c ducts so that they do not drop down the ceiling height. You just need to be creative. For an example, a 1-foot bump out in the interior framing (from the foundation wall) can be used as a chase for the ducts across the entire width of the house. Hallways can be used with lower ceilings also to run the ducts. Most buyers don't pay too much attention to a lower ceiling in a hallway. Get an a/c contractor out there to discuss your future build out and ask for his input on the layout so that the ceilings do not have to be dropped.
The other issue is the plumbing drops - is the 1st floor plumbing tucked in between the floor joists? Or do the pipes drop below the joists? This will also enter into the layout decisions.
There is a way to do your basement build out that you would be happy with. Work out a solution with the builder that you can live with - it sounds like you are dealing with a stand-up guy since he is the one who pointed out the problem to you. You are owed something by the builder as an extra foot of foundation height is not cheap.

 

[nuccaJB]

If its the basement that the pour was incorrect on and you were not going to have it finished with the rest of the house, why not have the builder finish the basement in the current price (along with other discounts/bonuses)?
Like T Bolen said the contractor can do some HVAC tricks to add some space. If that is done it may slightly make up for the error, then you and your wife can skip the drama of doing all of this over again looking for a new place. My wife would have completely snapped in a situation like this and the contractor would currently have a couple limbs hanging from his rear. Me on the other hand, these things kinda go in stide to an extent. If this was to be a dream-like house that was expected to give you and your wife several years of enjoyment, maybe you do need to get out of it and start over so it is perfect. Talk it over with her and see were you guys really are with a list of pros and cons, depending on the contractors compensation.

Where in STL is this? We moved to chicago and with the astronomical house prices we have been looking for a long time. Sometimes we debate on moving back to STL simply because the cost of living is so much better, esp houses.

 

[jlindy]

If its the basement that the pour was incorrect on and you were not going to have it finished with the rest of the house, why not have the builder finish the basement in the current price (along with other discounts/bonuses)?
Like T Bolen said the contractor can do some HVAC tricks to add some space. If that is done it may slightly make up for the error, then you and your wife can skip the drama of doing all of this over again looking for a new place. My wife would have completely snapped in a situation like this and the contractor would currently have a couple limbs hanging from his rear. Me on the other hand, these things kinda go in stide to an extent. If this was to be a dream-like house that was expected to give you and your wife several years of enjoyment, maybe you do need to get out of it and start over so it is perfect. Talk it over with her and see were you guys really are with a list of pros and cons, depending on the contractors compensation.

Where in STL is this? We moved to chicago and with the astronomical house prices we have been looking for a long time. Sometimes we debate on moving back to STL simply because the cost of living is so much better, esp houses.

We do plan on getting several years of enjoyment out of the house and this mistake not only reduces the value somewhat, but it reduces the enjoyment when we finish the basement. It is located in the suburbs west of St. Louis is O'Fallon/St.Charles County. HVAC tricks will help, but the bottom line is that no matter what we do, we still have to say it is an 8 foot pour. Starting over would be tough because we spent many many weeks looking for lots that we like and this one was the best one we could find that had a house we liked. I am meeting with the builder in about an hour so hopefully they bend over backwards to make this right.

 

[jlindy]

Sorry for your grief. Home building can be very stressfull due to the worries over things like this. I have built my home and am presently remodleing our lake house so I have some building experience. If you like the house, other than the ceiling problem, try to work out a solution with the builder. He may be willing to trade you some premium upgrades to mitigate the problem. Do not threaten him with an attorney now - unless you want to cut and run. Your relationship during the rest of the build is vital to the quality of the build and his response to other issues. If you come across as a jerk that wants a ton of money for this error, then you will not be high on his list to correct other problems. And there will be other problems.
There are many ways to route a/c ducts so that they do not drop down the ceiling height. You just need to be creative. For an example, a 1-foot bump out in the interior framing (from the foundation wall) can be used as a chase for the ducts across the entire width of the house. Hallways can be used with lower ceilings also to run the ducts. Most buyers don't pay too much attention to a lower ceiling in a hallway. Get an a/c contractor out there to discuss your future build out and ask for his input on the layout so that the ceilings do not have to be dropped.
The other issue is the plumbing drops - is the 1st floor plumbing tucked in between the floor joists? Or do the pipes drop below the joists? This will also enter into the layout decisions.
There is a way to do your basement build out that you would be happy with. Work out a solution with the builder that you can live with - it sounds like you are dealing with a stand-up guy since he is the one who pointed out the problem to you. You are owed something by the builder as an extra foot of foundation height is not cheap.

I don't know exactly what the layout of the plumbing is. He does sound like a stand up guy since he told us, but we would have figured it out soon enough though. :smile: The way I look at it, if they had to tear down and start over, it would cost a lot of money so I think it goes without saying that they sould give us a good amount off the house because it will save them from having to do it right or all over again.

 

[Dave Hardy]

If they can make it up to you by giving you full height ceilings in the basement, then I think I'd try to be OK with that. As a buyer, I wouldn't care how the full height ceilings were accomplished, only that they are indeed full height. Don't let this mistake ruin the experience for you.

 

[T Bolen]

One more thing to look at. See what type of floor joists are used. Are they standard dimensional lumber such as 2 x 12's? Those type cannot have any holes drilled in them as it would weaken the structural integrity of the joist. Or are they engineered I-beams (made with a combination of plywood for the vertical part and 2 x 4's for the horizontal part). If they are engineered I-beams, then the plumbing can be run through them with small holes drilled carefully in the plywood. Large holes for the drains are not always possible, but the supply lines should tuck in the joists. Talk to your builder about this. I assume that they did not use the girder truss-type joists as they are built just like trusses for the roof and have a lot of space to route everything within.
I'm not sure how much building experience you have, so forgive me if I appear to be oversimplifing the language. If you are not experienced with construction, it is never too late to engage a professional home inspector to be your eyes during the build. They are cheap compared to the cost of your home.
And finally - how is the contract written? In Florida the situation is very different if you buy from a builder who is developing a neighborhood, verses a builder who you have contracted with to build on your lot. You may need to check with a real estate attorney to determine this answer. The short story from Florida's laws is that if you own the lot and the builder is working for you, then you have absolute control over the contract. If you are buying one of the bulider's models in "his" neighborhood, then you don't own it until you close. His lot, his improvement. If a problem arises such as this, the builder can say take it or leave it - I'll sell it to someone else if you don't take it. This is extreme, but I had an employee who went through this with a slimey track home builder.
But that ain't a track home you're building!
Very nice, BTW.

 

[jlindy]

We had the meeting with the foreman, the zubdivision realtor that we've dealt with from day one, and the builder's owner. We were shocked, but the owner was kind of an ass and he was not willing to do much. He had the audacity to say that it was partially our fault that the foundation was poured incorrectly. Here is what they are going to do. Per the normal plans, the house usually has about 8 feet of duct work and two different sets that goes along the whole length of the basement along a beam. Since it is a two unit/furnace house, one set of duct work goes to the upstairs and one set goes to the main floor. What we talked about doing is moving the upstairs unit to the attic and ALL the duct work will go along above the ceiling so nothing will be seen and one extra set of duct work will be missing from the basement. For the second set, instead of going along the entire length of the basement, they are going to make it turn to the back of the house about 1/2 way down where we would have the storage area if we finished the house. That way we would have more usable head room. Although this helps, we will still have some areas that are really low. The owner said that they were willing to cover the cost to move the HVAC. (no sh%& you will)

We were floored, but that it ALL that he said he was going to do for us. He said that he could sell it tomorrow for more money than we paid for it, so I think he was trying to get us to accept or get out of the contract. I think it is pretty crappy business ethics on his part. He actually said that things like this happen all the time when you build and you work through them. I can understand a window in the wrong place or using the wrong cabinets accidentally, but not pouring the wrong foundation. The very first thing he said to us after introducing himself was "are you excited"? Excited, we were until you screwed up.

With all the HVAC changes, I hope that it will be ok. However, our main contact throughout this whole thing, seemed more willing to see what could be done, so we'll see what they will agree to. Thanks for all of your advice so far.

 

[KGP]

It doesn't suprise me that the builder to the tack of The best defense is a good offense. Jeff, you know the right people to consult with because of your job.

One last tidbit: I have an old friend who used to be a well respected custom home builder in StL, and also took the same tack a few years back. Problem was that his client had the last name of Busch. He no longer builds homes around here.

 

[LJSB]

When I have something built, especially a new structure like a house, I check every phase and the how the excavation and foundation/footings are poured is a must.
How long has it been since you checked the progress? Didn't you go look after the foundation was completed? You couldn't see the difference between 8' and 9'? Tsk, tsk.
Here's some questions to ask yourself:
Do you want your house sitting in mid construction for a long time while you battle it out. What about of the interest on the loan or building costs? Do you want a builder to finish your house if he's fighting with you? How is this going to play with the bank, assuming you have some type of mortgage product?

I wouldn't want to screw with the walls of the foundation at this point not with that much house sitting on top of it.
I'd consider their offer and push for some more add ons or work a deal out for another house/lot/location, again, if the bank goes along with this.



PS. Make sure you have good shingles and roofing on that because with all the front angles it will cost plenty when it's time to re-roof.
Also, as high as it is on the back think about a good gutter topper system with the trees around as you say. Going up there to clean them can be a little scary.
Nice looking house. What's that a three car with a separate bay heated?n

 

[jlindy]

When I have something built, especially a new structure like a house, I check every phase and the how the excavation and foundation/footings are poured is a must.
How long has it been since you checked the progress? Didn't you go look after the foundation was completed? You couldn't see the difference between 8' and 9'? Tsk, tsk.
Here's some questions to ask yourself:
Do you want your house sitting in mid construction for a long time while you battle it out. What about of the interest on the loan or building costs? Do you want a builder to finish your house if he's fighting with you? How is this going to play with the bank, assuming you have some type of mortgage product?

I wouldn't want to screw with the walls of the foundation at this point not with that much house sitting on top of it.
I'd consider their offer and push for some more add ons or work a deal out for another house/lot/location, again, if the bank goes along with this.



PS. Make sure you have good shingles and roofing on that because with all the front angles it will cost plenty when it's time to re-roof.
Also, as high as it is on the back think about a good gutter topper system with the trees around as you say. Going up there to clean them can be a little scary.
Nice looking house. What's that a three car with a separate bay heated?n

The three car garage is a standard garage that is not heated and all one space. As far as going out to the house when they first poured the foundation, yes, I did that every few days. However, I don't make it a point to get out the tape measure and double check every step of work done. Also, not only have I never built a house before, but the height of the pour is hard to determine right away because they still have to add gravel down before they pour the basement floor. There is no loan at this point. We are not subcontracting a builder to do this, but it is the subdivision builder that owns the land and builds the houses.

We countered with our own version of settlement and if they don't agree to that, then we are going to have to weigh our options. At the very least, the BBB will get a call if they refuse all offers. Also, St. Louis news does a "you paid for it" segment to bring light and some bad publicity to this. This is one house and the builder still has many other subdivisions to complete. I would hope that their name is worth more than this. We shall see.

 

[jlindy]

It doesn't suprise me that the builder to the tack of The best defense is a good offense. Jeff, you know the right people to consult with because of your job.

One last tidbit: I have an old friend who used to be a well respected custom home builder in StL, and also took the same tack a few years back. Problem was that his client had the last name of Busch. He no longer builds homes around here.

I have talked with a few different attorneys. :wink: The builder seems to think that this type of thing happens all the time. yeah right.

 

[LJSB]

the height of the pour is hard to determine right away because they still have to add gravel down before they pour the basement floor.

I see what you mean.

 

[Dave Hardy]

He screwed up, he admitted he screwed up, and he's trying to fix the screw up. I think you're being a bit of a hardass on this one. And stuff like this does happen all the time. He's building the same house he's built 100 other times, but with the oddball request for a 9 foot pour. While this detail is obviously very important to you, it is a small detail to him, and it got lost. He called his concrete guy and said pour the same foundation you have the other 100 times and forgot the extra foot. This sucks, but what's done is done and you've got to try and make the best of it. If this is a situation that can't be dealt with without an attorney on retainer, then I don't think you're up for a custom built house. Find a prebuilt one that you like, and you will be unaware of all of the mistakes that undoubtedly exist in that one.

If I were you I'd counter with:
1 - The aforementioned altered AC
2 - Finished basement ceilings and walls
3 - If you're not happy with the finished height the option to walk.

You hopefully get ceilings you're happy with, and he doesn't incure much additional cost in making you happy. If that doesn't work for you, then I'd walk now and start over. If you go to war on this one, then every other interaction with him thru the entire process will be a headache, and you need to be on good terms with the folks building your house.

 

[jlindy]

He screwed up, he admitted he screwed up, and he's trying to fix the screw up. I think you're being a bit of a hardass on this one. And stuff like this does happen all the time. He's building the same house he's built 100 other times, but with the oddball request for a 9 foot pour. While this detail is obviously very important to you, it is a small detail to him, and it got lost. He called his concrete guy and said pour the same foundation you have the other 100 times and forgot the extra foot. This sucks, but what's done is done and you've got to try and make the best of it. If this is a situation that can't be dealt with without an attorney on retainer, then I don't think you're up for a custom built house. Find a prebuilt one that you like, and you will be unaware of all of the mistakes that undoubtedly exist in that one.

If I were you I'd counter with:
1 - The aforementioned altered AC
2 - Finished basement ceilings and walls
3 - If you're not happy with the finished height the option to walk.

You hopefully get ceilings you're happy with, and he doesn't incure much additional cost in making you happy. If that doesn't work for you, then I'd walk now and start over. If you go to war on this one, then every other interaction with him thru the entire process will be a headache, and you need to be on good terms with the folks building your house.

I don't think that we are being hardass on this one. They poured the wrong foundation, period. We are trying to work with them and are not being unrealistic like trying to get them to start over. The realtor is a nice guy who admitted they were wrong and is trying to correct the situation which I respect. The owner, however, is the jack ass that is saying it is our fault too that this was done which is complete BS and said that they are not willing to compensate us at all for the mistake besides moving some of the HVAC around. He acted like he thought he could push us around just because we are younger.

Just to let you know while the standard pour is the 8 foot, MOST people contract for a 9 foot pour so it is not at all an oddball or out of the ordinary request. I'm not saying we want to sue over something stupid like this, but they should gives us some extra upgrades or a little money off the house for their tremendous mistake. After all the value is less without it, but we'll see what they decide.

 

[Cairo94507]

OK we can agree that some of us would have been at the build daily, checking on things. But that is not possible for a lot of people. Some people buy a custom home, provide plans, etc and expect that house to built per the plans -reasonable? Yes!

I would try to get any of the builder's offers in writing at this point, make sure his offereings are witnesses by people that, if push comes to shove, will give a deposition attesting to what was offered, etc.

I would consult someone experienced in assessing/identifying damages (what you can/should reasonably expect as compensation) in situations like this and then present your demands in writing to the owner. Consult the attorney experienced in this area of law for the correct timing of all of this.

Then realize that you did not do anything wrong or negligent - that would be the builder.

 

[NSXROX]

Very sorry about your situation. I've had 2 custom homes built over the past 5 years, both in new developments, and I've seen some of the major screw-ups, similar to yours, happen to many of my neighbors' homes. It sucks, but unfortunately you may have to live with an 8 foot basement if you want the house. I would certainly seek restitution from the builder, although I'm sure they won't cough up enough money to cover your loss in property value down the road. Personally, I would rule out demolishing the basement slab and letting them dig another foot deeper. Too much risk involved in disturbing the footers that the walls sit on, which could manifest much bigger problems 5-10 years down the road.

Unless your willing to bail on this house and start the process over on another lot, try to get the most money you can from the builder and be happy with the rest of the house. It looks like it'll be real nice when its done. You might even consider negotiating the addition of some options that maybe weren't on the original contract like a finished basement, insulated garage and garage doors, crown moldings, or upgraded countertops, appliances, carpeting, a/c unit, just to give you some ideas. Builders are usually more willing to fork these over instead of cash.

 

[nuccaJB]

In response to DAve Hardy,no offense, but If you go to Mcdonalds and order a #2 and get a #3 should they fix it? YES! Don't tell me it is not the same because it is. Yeah he builds a hundred of these houses, but each one is seperate, they are not on an assembly line. You call in the order and it should say the specs. In a business like this the whole point is to deliver what he ordered and is supposed to be paying for. I say screw them if he wants to BS around on fixing his error. This is not a small investment. At this point I would just go get what you really want. If you settle you may like your house, but always think damn the basement would be perfect if it had the 9' pour. JMO