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5 years ago I built a large custom home in the Oakland,CA hills on an AIA contract. It’s 2+ story stucco box, flat roofs, no overhangs on the top of a hill so takes a lot of weather. The windows are Blomberg aluminium with nail on fin and are inset. The rough framing of the inset is flat and there were no flashing details although I asked for them (not in writing) and got none. The stucco sill is sloped. I flashed the windows with Bituthene ice and water and used the two part liquid membrane in the corners were the jambs meet the sill. I caulked the nail fins. The stucco is scatch, brown, and color–no paint or other coatings. In heavy rains four of the windows leak at the sill. I believe that the building has such a great exposure to the weather that the porus stucco becomes saturated and builds up on the flat sill creating a roof rather than sidewall condition. In retrospect I should have used a soldered sheet metal pan on the sills but have never had this kind of problem in 30+ yrs as a GC. I could take the four windows out and reset with such a pan but the owners now believe that the other windows are suspect. I could have the whole house painted with an elastomeric coating ($11,200) but don’t know if this would satisfy the owners. The architect takes no responsibility and I don’t like taking the whole hit. I also do not want this to go to litigation as that has never happened to me in my many years of building. Thanks for any ideas or suggestions.
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Ted,
5 year warranty! Wow, you're a really good businessman. Contractors around here are lucky to offer one year.
I'm guessing the house was quite the job if its that much to coat it with elastomeric?! Run it by the owners and see if they're happy with it. I think anyone should be satisfied with a contractor willing to fork out over $11k for warranty work.
And I don't normally condone this, but I'd definitely mention to the homeowners how the architect didn't want anything to do with standing behind their work. Just makes you look that much better.
Mike
*And also, maybe Jeff or Mark or whoever could move this to the Business folder as I'm sure guys like Sonny, Mike Smith, Blue and the host of others could offer some even more detailed advice?Mike
*As soon as I read "Oakland, CA hills on an AIA" I just knew you were in for trouble.BEFORE you say ANYTHING to the owners hire an independent (impartial) construction inspector. No, not the garden variety home inspector, but one who is something like a "expert" witness. I do not see how this can not go to litigation.And, whatever you do, DO NOT start making offers for various fixes to the owners. This has been construed as evidence of culpability in CA case law. Then you'd be on the hook and with some owners who knows where it stops. I am not kidding you.You still have that job log, right? He with the most paper wins.
*See, I knew someone here would have more pertinent info than I...Way to go Rich!Mike
*Ted, what type of windows, casement, single hung, etc.?
*Can you determine the leak point? A manufacturer's defect on some 3' x 8' fixed lite, aluminum frame windows I installed leaked at one lower corner joint. It's amazing how much water can get through a joint you can hardly see. Plus a couple of them fogged. They came out and honored their warrantee.
*Ralph is onto something here. Some disappearing dye, and the right conditions....If you can't figure it out for yourself. I'm sure there are people who can do very controlled tests to determine where/how the water is making it's way through.It may behoove you to spend some money up front having the windows tested. You may save yourself a lot of money in the long run. If they will not allow anyone to do the tests necessary to find out where the leaks actualy are, that may end up being one more of those pieces of paper that you have if it goes to court...
*Thank you all for your responses. As to the type of windows: 3 casements, 1 fixed, all Blomberg. I feel quite certain that I have ruled out the windows themselves. Rich, thanks for your input. I wasn't heartened by your belief that this must necessarily end in litigation. As I'm closing in on retirement, I don't want to go out that way. Moreover I don't have a paper trail as my focus was more on the hammer and getting the job done than documenting possible problems: naive I'm sure. The AIA contract calls for arbitration do you know if this would still apply this long after end of construction?
*I think that you should take care of the problem where it is demonstrably a problem now and offer to do the same with the other windows if and when they leak. Make this offer to the owners and explain your position to them. They probably don't want to litigate this any more than you do and may appreciate a straight forward approach. They may also know how difficult it is to find someone who will stand behind their work. Did you build this house for them and was that a satisfactory relationship? If so, they might even be willing to share the cost. I have had customers who have done so in similar situations.
*build each custom house with a separate disposable limited corporation so when the architect leaves you high and dry with a defective design, the disappointed home owner can sue an empty shell company. In Vancouver, British Columbia the same stucco/ lack of overhang problem exists. When the condo owners go to sue, they find that the developers built each project with a separate holding company and a relatively unreachable in the courts.
*Mike, that's exactly what builders do here in Naples, Fl. Not for each house, but for each set of houses they build in new developments. Each development whether the builder will build 2 or 20 houses is done via a separate corp.They may be building in as many as a dozen developments at the same time.
*Mike and Sonny, I realize its a CYA thing but doesn't that display a bit of shadyness to future customers? Or is it done in a way that no one ever knows? Excuse my ignorance on it as I haven't heard of it before.Mike
*Michael, it's not shady, it's called asset protection.I thought most of these deals were now being done in LLC's. Five years is a long time to warrant the window seals and caulk. I'd want proof that the homeowner has recaulked on a regular (annual) basis. I'd want to know it's been painted.I'd want to know when the first leak appeared. If I wasn't notified immediatly, I'd want to know.I'd also be talking about this issue to my pre paid legal insurance lawyer, instead of asking my buddies! This type of stuff is the exact reason that all builders and contractors should have easy access to a lawyer. If Rich is right, and you already yapped to the client about some solutions, then the price of a lifetime's pre paid just went down the tubes!blue
*Thanks again for the ongoing input; it's cleared some things up for me. Although my clients on this project were difficult which makes going back in unpleasant, it's not their fault that the windows leak. I would like to share the responsibility with the architect, but that ain't happening. So two more questions: 1) The portion of the house that would need the elastomeric paint job to protect the window sills that leak would be about 1/4 of the house. I would be willing to cover that portion; any negotioning suggestions? 2) You say I should offer the owners no solutions if I plan to go to my insurance carrier--Why? and do you think opening up the case with them would be to my advantage especially if I'm looking to keep from drawing this into litigation but still want to avoid taking the full hit? Many thanks for your help.
*ted... i'd seek a legal opinion from a lawyer with expertise in construction law before going to the clients with a fix
*Michael, CYA is done for one and only one reason: So you don't lose it to some "shady" client or one of their "shady" lawyers.The rest of our clients are fair, reasonable and only want a solution - not to rip us off. Remember the 1st thought of both shady types of people - deep pockets and they could care less whose and "fairness" or "ethics" doesn't even enter their mind.The $$$ rules - CYA!Why do you think we have police departments - because of law abiding citizens? They COAs.
*I'm still having difficulty seeing water infiltration based on your description of your flashing technique. Unless I missed something.Nailing flanges caulked on all four edges.Ice and water over the flanges. First the bottom, then sides and then the top, with that stuck under the house wrap or felt. Plus that liquid stuff in the corners?How much inclement weather before the puddling shows up?Have you ruled out frame leakage by directing a stream of water at the window, concentrating on the frame joints and whatever sealant is bonding the glass to the frame?If you attempt to seal the stucco with the elastomeric and it doesn't work, you have thrown your money away and created a maintenance factor for the homeowner.
*Ted, here in Arizona, a new home is covered for two years,this is by law,by the G.C. I'am guessing that you have and did share your concerns with the owner's i.e.Stucco is not sealed,and never has been.I'am guessing that you did the garden hose test on the window's, to verify what Ralph, brought up.At this point, I would suggest satisfying you, and your attempt's to do right,if you have to deal the homeowner's in on the game,let them know what your rules are going to be. Let it be known, that I'am not a stucco man,or a painter, you might mention a clear sealer, that will probaly darken the home up some, but as I try to live by on a daily basis, safety , function,and then asthestic,s.Best of Focus for you Ted. J.J.
*I don't quite understand this. The architect can draw almost anything nifty that can create, win awards and then not be responsible for the after effects of their design. The builder, who has built according to the defective design, is left holding the bag quite possiblely financially responsible. But the architect was drawing what the client wanted. Did old time wisdom of function get set aside for the impractical form? Is the client ultimately responsible for approving the design? Should the builder continually respond to and document all elements of impractical design to CYA when he gets taken to court? How well protected is the architect in his contract with the client? Some days I wonder because the story seams to repeat Mike Galt
*Mike:I had to jump in here. Read the initial post carefully.1) The architect didn't provide flashing details. While this was unfortunate for the contractor (who in hindsight maybe should have insisted on details prior to proceeding), and perhaps irresponsible of the architect to not provide them, the window details were essentially design/build by the contractor. So how is this design/build the architect's fault since neither the details nor the execution was his?2) That AIA contract with its arbitration provision may very well have saved the contractor's butt from a more expensive lawsuit.3) Exactly what aspect here are you judging to be "impractical design"? Sloped stucco sills similar to probably a bizillion others in the real world? By that logic, flat roofs are also "impractical design" since they leak frequently, too. Architects invented flat roofs, you know, because of their clean award-winning lines, and have been alone in foisting them on poor contractors who just don't know better. If the architect has screwed up, okay, but I haven't seen anything here to make the architect liable other than perhaps incomplete drawings. But if the contractor proceeds with those drawings without squawking, then the contractor is assuming the responsibility for filling in the unknowns. I feel sorry for the contractor, because it seems like he's tried to be responsible and ethical at every turn, and it may be one of those cases where no one did anything wrong, but it still had a bad outcome. Richard (an architect)
*Richard, the window company has specs on the installation of their windows. Almost every window spec sheet I've looked at has had a detail on flashing.This probably isn't anyone's fault. This is best handled by an attorney. Better to consult the attorney early in the game to avoid costly legal mistakes. blue
*RKM, I appreciate your perspective here and would like to respond becasuse I have a lot of respect for architects and try not to blame them for my errors. You are absolutely right that I should have insisted on the flashing details that were not in the drawings, and that I requested, before continuing. The situation was complicated, however, by these facts: my personality (keep a job moving over good business practices), the architect was a friend, and the relationship between the owner and architect had substantially broken down. Also, I should remind you that these were not normal details (inset windows, flat sub sills, large highly exposed structure) and would expect an architect to help address these conditions. In fact this area in which a lot of houses were built as the result of a fire and in which the city designers strongly pushed inset windows has had a whole lot of houses with window leak problems. Blue, I did ask the window company for flashing details and they would provide nothing for inset windows. So I went to what I expected was the most protective system I knew (bituthene flashing with liquid biththene membrane at the lower corners, caulked nail fins, strips of bituthene over the nails in the fins. Again many thanks to all for their input. Could someone explain to me what determines wether threads show "red new messages", what causes that designation to disappear, and what effect that has on posters.
*RKM, let's assume the windows are the source of the leak and that the arch did not provide window details.Because the arch is hired to provide a professional service is it not incumbent upon him to be thorough? And if, by omission, he failed to provide a complete set of papers, isn't he liable for not rendering services as stipulated? Wouldn't something as simple as "Design me a house" constitute such a stipulation?Bear with me, I'm just being tangental. I'm thinking there is some code that governs here.
*Ted:You have my sympathies for building in the Oakland firestorm area. I was an expert witness for a contractor there who built the design of a VERY well-known architect and did a stupendous job. Even though the contractor did everything mostly right IMO, except for few punchlist items essentially (which the contractor was happy to take care of), the owner found their own expert witness attesting to hundreds of thousands of dollars of defective/incorrect work. Even though I didn't see that the contractor did anything wrong, he was financially destroyed by the lawsuit process. The architect was sued as well. My take was that the owners were basically damaged, very unhappy people looking for someone to blame besides themselves. I've heard of many such stories in the Oakland hills about the firestorm victims.I would do anything possible to avoid lawyers.One thought -- is it possible your stucco lather penetrated all of your nice waterproofing membranes on the sill with nails/staples?Richard
*WARNING: This post just grew and grew and...I believe the arbitration clause would still be in effect. Under CA case law, a contractor can be on the hook for much longer than 5 years. Assuming the windows are the source of the leak, this would constitute a latent defect. The contractor is liable for 3 years--my memory fails me, I believe that is the right number, but I do know it may be longer in some cases--after such latent defect is discovered. So, let's say the defect is discovered after a few hard rains 5 years after occupancy, the owners have several years in which to address the matter with the contractor.At this point the contractor has several options. One, proceed through the arbitration clause in the original AIA contract. Two, negotiate mano e mano with the property owners regarding a permanent fix. Three, litigate. Four, file bankruptcy.The first option puts the contractor at a disadvantage for several reasons. One, the AIA was written to protect the arch. Two, he has no right to appeal a decision which often is decided by an ALJ with scant const knowledge.The second option is the best recourse for the contractor. One, it aids in preserving his ethical reputation. Two, it establishes a genuine concern of the contractor to fix the problem. Three, he is in control, after all, he is the "expert" and it is a tenable position for laymen to defer to his opinion. Four, it is the less costly option.A caveat in regards to option 2: BEFORE you communicate with the owners, it is strongly suggested you have a solid plan of attack. Write it out and get the owner to initial everything. Include a clause by which the contractor has the say so of which workman and of which companies are allowed onto the premises. Are you certain it is the windows? Is the window mfg involved yet? By what methods can you ascertain that the windows are the source? What if you get into demolition in tracing a leak? What if leak testing/selective demo ends up as a wild goose chase? When is enough enough? Stipulate something like a due diligence clause whereby a certain amount of effort constitutes a reasonable effort. A stopping point after which all costs come straight out of the homeowner.Options 3 & 4 are bs. Avoid these at all costs. However, your clients may view litigation as their best option.I would not offer an elastomeric coating. As has been pointed out, what if it doesn't solve the problem? Now you are out the $$$ plus you have just given them ammo--as I mentioned in my 1st post.My take on all this is that Ted is sitting on a powder keg. Almost more important the the leak is his efforts in managing the clients who seem ready, able and willing to litigate.BTW: This is a rebuild after the Oak hills fire, right? I had a chance to get me some of that. Awfully enticing as that work came at a time of slow building and the money was there alright. I decided to not get involved. I heard lawsuit everytime I thought about going up there. That was my perception, maybe I'm wrong.
*I was once in a very similar situation leak wise and dilema wise. I ended up sitting down with the clients and dialog worked out a prorated cost sharing agreement. The important thing is that you honor your craftsmanship. It's one thing if something wears out but within 5 years you should most certainly fix it, quickly. By the way, I wasted three months thinking the leak was at the seam of stucco and window frame; it wasn't. The leak originated well down slope on an adjacent metal roof due to an unintended dam but I didn't figure that out until after we restuccoed with permaflex. Make absolutely sure you know the source of the leak before you make any repairs. Just forget the architect and take care of yourself; your reputation is your biggest asset.
*Building details such as this should be of interest to anyone who might be considering putting a hole in a building envelope. That would be everyone because we all deal with windows and doors.Perhaps Ted could post a a couple of drawings showing the framing, sheathing, window and flashing technique he ended up using and how the window was inset. I've tried but I still can't figure out how the water gets around the fins and up onto the sill. We don't use ice and water membrane but my understanding is that it is self sealing so the lath nails should not be a problem. Am I wrong?Another thought. The frame had to be constructed so the glass would be replaceable. The glass to metal sealant is certainly suspect as well as the joint sealant as I mentioned earlier in describing my leak situation.Damn. Another thought. Two story stucco box, flat roof, no overhang.Leaking windows on first floor or second floor? What about the roof/sidewall junction? How is the stucco terminated? Is it possible that the blowing rain is coming in at that point and running down the sheathing behind the house wrap? Only showing up at the windows because that is a break in the path?EDIT: And I didn't even see BuildNM's post when I wrote that.
*Such a wealth if info and ideas! Richard, thanks for the good ideas; I'm trying for option 2--trying to forget the difficult history and going for compromise. The firestorm area had many horror stories and also, I'm sure, many fine outcomes. With the exception of this difficult child our other four projects, mostly after the boomtown atmosphere had died down, went very well. BuilderNM, searching out these leaks can be an adventure for sure, but I'm sure I've isolated this to a sidewall leak at the window sill. Ralph, imagine your window ro in a 2x6 wall 3" oversized each direction, nail 2x4 on all four sides flush to inside of wall, flash (be careful you're going to get a big puddle at the bottom), nail window to 2x4 frame, return stucco to window, prey and yes bituthene ice and water is suposed to self seal for punctures. Hey, you guys are rekindling my sense of humor, except for Richard's story about the builder who did such a great job that he got sued into oblivion.
*I prefer to have and architect on every job, so I am not biased.As contractors, we fix our mistakes all the time, we all make them.Richard, just to show that you are human, relate to us a story about a design mistake you made, and how/what you paid to fix it.I personally have never been involved with an architect who admitted to any mistakes and/or paid to fix them. Is it within the architect's scope to pay for a design flaw? Or are they just canny enough to avoid it? I've been involved in situations where the architect erred or omitted, but they always seemed to have an out, contractually or otherwise, leaving the howmeowner and/or contractor high and dry.
*Well, Tommy B.:Not sure why I've given the impression that I don't consider myself human and immune from mistakes. However, to answer your question, I have been extremely fortunate that my mistakes have been pretty minor. For example, I once moved a kitchen island on my CAD program and didn't notice that the dimension didn't update automatically as it should have. As a result, the island sink got plumbed-in incorrectly and the vent would have ended up in the walkway. I admitted my mistake and was there with my checkbook, but the contractor said to just forget about it, as other contractors have done when I've had other minor screw ups. I believe this has been because:1) The screwups have never amounted to more than a few hundred dollars, at most.2) The contractors had already built-in a contingency fund for stuff like this.3) The contractors recognized that just their profit alone on the jobs was probably more than my total fee and didn't feel like beating me up too badly. 4) I have gone to bat for them in justifying legitimate extras that owners didn't want to pay for.5) They treated it as a marketing expense since every one of them got sent hundreds of thousands of dollars more business from me. This was not strictly payback, because they were very good contractors to start with.I have never *expected* contractors to pick up the tab for my mistakes nor tried to weasel out of responsibility, but I certainly try to take care of the contractors that take care of me.Richard
*The unfortunate fact is that most architects do not build what they design.The unfortunate fact is that code generators and building code officials do not build what they regulate.The unfortunate fact is that contractors are expected to build to the design, recognize design limitations and develop solutions while following codes they are required to know.In spite of the fact that most builders are not engineers we are expected to not only follow engineering specs but know when they are or are not correct. We violate code and are held accountable if we follow incorrect engineering specs.The unfortunate fact is that we are caught in the middle if or when something goes wrong because as the builder, the person in charge of the construction, we are the ultimate scapegoat.If we refuse to build something we know or believe is wrong we lose our jobs. If we build something that is wrong because we gave in or didn't really know what we were doing it will be found not to code and/or negligent.
*It kinda sucks doesn't it Ralph.It's funny but Richard thinks we have some money "built in" on contingency for archetectural screwups. Thats funny. I wonder how much he builds into his fees to cover our screwups.I can safely say that archetectual ommissions has cost me thousands and thousands and thousands over the years. I've spent hours figuring and calculating simple numbers just because an architect saved a few seconds. This is actually a very horrible business sometimes....blue
*RKM,You didn't give me that impression, some other architects did. I really was looking for your input. I can't think of a lot of specific examples but they are always sticky for the contractor. Generally when a mistake in the plans pops up, its as if the contractor should have caught it before he built the thing.Blue, I think the framer takes the brunt of it alot of times. Usually he gets involved about the time the foundation is going in and either uncovers mistakes while bidding the job, or in the course of framing. At this point the framer is in a poor negotiating position. The framer's fees are less than the architects, and he's put in a position of double checking the plans, and/or finding/proposing solutions.I have a clause in my contract that states I am not to be relied on as an architect or engineer among other things, but it always comes into play. I think I need to change it to something along the lines of if I am acting in that capacity my rates are $150.00/hr. And all crew will be charged for time to correct the plans at 8hrs/day whether they are working or not until revisions are made.What do you think, Blue?
*Thats a great idea Tommy. But, if the contract is enforceable, and you use your attorney to collect, you'll never get another job with that contractor or homeowner.It's a catch 22. I'm prefering to find a better business! i'll leave this stuff for you'se.blue