Hi guys,
I don’t get to check in as often as i would like but came across a good question for the masses.. so here it goes.
I have a client buying a new Certified pre-owned home;)
They asked me to take a look at the back deck and give an estimate for installing new flashing and fix the rotted wood behind the ledger board.
I give them an estimate and also make note that this deck is not well built and would not pass current day code standards as well as general framing practices.
I tell them yes I can fix the flashing and rotted wood. But as a licensed contractor once I modify or repair a structure that I know to be less than structurally sound, it is my obligation to notify You as the HO and fix the deficiencies by law.
The bottom line is If I were to do the repairs (which I am not, Present owner said they will take care of it) Would I be liable if i was the last guy to work on the deck and someone got hurt?
Would love to here the responses to this one. I feel like I know the answer ,but I wish to simply confirm my suspicions.
Thanks Guys
Ray
Edited 5/28/2009 4:41 pm ET by raymond128
Replies
"Certified pre-owned home"
What is a CERTIFIED home?
William the Geezer, the sequel to Billy the Kid - Shoe
I was more confused by the term "NEW ... pre-owned"and how could it have gotten "certified" if it already has rot?Maybe the certification states, "This is tested and confirmed to be true, certified rot, not that imitation rot you see so much of these days"
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Hey Piffin thanks for the reply.as far as the whole "Certified pre-owned" thing .
IT"S A JOKE;)There is no such thing.. but it sure sounded fun at the time.
I just like that phrase. Whoever thought of it... Brilliant.I am just wondering if from a legal stand point or liability stand point if I would be held responsible for the deck structre if I was the last one to touch it?Ray
He probably means the homeowner is certified.
if it is as bad as you say, I think my reply would be that I can't get to the rot to repair it without removing and re-building the deck.
I think.
one that still haunts me has not much to do with liability, but more with reputation. I had a client who asked me to look at some rot at a deck/house intersection. It was BAD and I told him it required a lot - probable total rebuild and some foundation work at house corner. He asked me to do the minimum to just get him thru the summer season and plan on a major overhaul the following spring.
I did that, but the house got sold by the next spring.
I have always suspected that he said something to the effect that "Piffin fixed all that stuff up nice for you"
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Well roughly my story goes like this , Good friend gets called to replace boards on a deck for homeowner, he fixes the ones he thinks are bad.
Homeowner sells house one year later, Lady buyer comes and breaks her foot on rotten board on deck, She was told do not go on deck.
Lady sues, It goes to homeowners insurance, They sue carpenters insurance and wins,
His insurance covers it Except for 10 grand and drops him.
So YES going by This story you would be responsible.
I did not believe it but now his Insurance went up as High risk and he cant make it, Well i guess he could fix more rotten decks.......
Bobby I agree with you. and that is what my gut tells me.I have not asked the building inspector or a lawyer the same question but was wondering if any other have had experience with this sort of situation.Thanks
Ray
Edited 5/28/2009 7:43 pm ET by raymond128
That's actually a very vaild question, and it may take a lawyer to find the right answer. I don't know if I have a legal responsibility to do it, but I always inform customers about code issues and have walked away from jobs if I couldn't fix them - or make a very clear separation between my work and the rest of the wreck.
I do quite a bit of "punch list" stuff for realtors based on the property inspection reports. One of the biggies is water heater strapping. For years, people used a couple of strips of plumbers tape to sorta hold the WH up in the event of an earthquake. A few years ago, San Jose started requiring more serious strapping and the majority of the houses hitting the market need it.
Last week, I did one where the WH also had other problems (not 18" above the floor, no drain line from the relief valve, and a vent that was lucky to not have fallen off long ago). I gave the realtor a written "report" pointing out all of the problems and clearly stating that just strapping it wouldn't be enough to meet code. She relayed that to the owner who said that he only wanted it strapped. I strapped it and sent another copy of my "report" with the invoice, but I'm really not sure if that's enough of a CYA. - lol
Interesting reply Dave. thanksI have to agree that it might take either a lawyer or a trip to the building inspector's office with this question.I know that the answer could be different from state to state.
I,am on the east coast in Mass.I have always gone under the assumption that if i work on something that has some code issues It is my responsibility to bring it up to code if there is an issue of safety.I figure there might be a way to draft up a legal type document that would state that the owner has been informed of the safety issues and has declined to have them fixed by me and therefore releases me from any liability or claims in the future.Thanks for the reply
Ray:)
Well Certified Pre-owned is a legit term. It is used by new car dealers where they have a used car of that brand and it meets certain standards set by the manufacture.But it is also used by others on used cars where the only "certification" is whoever made up the term.That is why I ask. Was wondering if maybe the orginal builder took in trade and certified that it meet certain standards.Or if some Home Inspector has some program that they certified houses."I have always gone under the assumption that if i work on something that has some code issues It is my responsibility to bring it up to code if there is an issue of safety."How do you determine that this is an "issue of safety".I would imagine that you work on lots of things that aren't up to current codes, but at the same time don't refuse to work on them unless you bring them up to current code.One of the simplest would be doing any work on a window that does not meet current egress requirements.
.
William the Geezer, the sequel to Billy the Kid - Shoe
So, they certify that somebody has already owned, and/or does already own, the new home. Sure, that makes perfect sense. :D
I've told several HOs I won't touch such a job unless I can do it right, for just that reason. That's just the sort of thing that could come back and bite the contractor where it hurts - and not in a cute and funny way.
~ Ted W ~
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See my work at TedsCarpentry.com
Thanks for the reply TedI swear I have gotten more responses about the
"Certified pre-owned" thing than the actual question at hand.Although you did answer the real question thanks.That will teach me to throw in strange phrases in the middle of a serious discussion;)PS I am not doing the work , the current owner is having his guy take care of the flashing and rot. Yeah I can't wait to see what kind of job will be done;)Thanks for the input
Ray
I swear I have gotten more responses about the "Certified pre-owned" thing than the actual question at hand.
so what was the answer... or at least what was the realator trying to pull???
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Ok ok Let's set the record straightI simply put that little "Certified pre-owned" thing in the original post as a goof and play on words to describe the fact that it is NOT a brand new house but rather a currently occupied house. Thats all
No Realtor gimmicks no nuthin
Just me throwing in a goofy phrase that i get a kick out of.That's my story and i'm stickin to it.PS: If cars can be certified pre-owned why can't houses??
I had a few "Certified pre-owned" girlfriends but gave them back!!!!!
were any of them rotten?
He said the rest seemed alright then but getting "iffy"
"Certified pre-owned"
When they started putting that in used car ads I thought "Yeah, wouldn't want them slipping me a new car instead"
Joe H
That will teach me to throw in strange phrases in the middle of a serious discussion;)
I guess you forgot where you were postin' LOL
~ Ted W ~
Cheap Tools! - MyToolbox.netSee my work at TedsCarpentry.com
best person to ask would be your insurance agent.
second best would be a lawyer.
my insurance agent answers my questions for free ... that's why he'd be the first guy I called.
Jeff
Buck Construction
Artistry In Carpentry
Pittsburgh Pa
Jeff
that brings up a good point (call your Insurance agent)
I'll give my agent a call today and see what he has to say.
Sometimes I have to wonder who really is the right person to answer the question of once you touch it is the whole thing now you responsibility?Building inspector?
Lawyer?
Insurance agent?I think the real issue here is does the law require a contractor to have to fix any and all KNOWN code violations if you do a repair on a smaller part of the structure.An extreme hypothetical scenario would be an electrician goes into a house to do a small repair, and notices that the wiring in the house is not that great. So does he have tell the HO sorry Mrs.smith I know you only needed a new ceiling fan but i,m going to have to update your whole house now. is this what we are coming to? I doubt it but it could happen.
I can't imagine a law that would REQUIRE you to fix non-code problems that are outside the scope of work the HO wants done. As I said in my earlier post, I don't even know if I have a LEGAL requirement to point them out, but I feel that I have an ethical obligation to do so.One "unintended consequence" of holding contractors legally responsible for all code issues could occur in your ceiling fan scenario. Mrs. Smith (knowing that her house wiring is a mess because her ex-husband didn't know his butt from a hot rock)hires you to install her ceiling fan. You start working and quickly run into problems. You point them out and give her a price to fix them. She replies that she's only paying for the fan installation, but since "the law is the law", fixing the rest of the mess is on you. GOTCHA, Dude!!!In that world, which of us would even start the pickup in the morning? - lol
No need to be hypothetical on electrical. The code requires that when a certain percentage of the house is redone, or of an area wiothin that structure, things have to be brought up to code. It is fairly specific.
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Is that just for electrical code or simply the building code in general?I have to agree with what one of other posts said that it boils down to not a case of liability as much a case of will you be sued.The major point that I was trying to get answered is at what point does the rest of the project even though you did not build it become your responsibility. I realize this can get to be a very grey area and where does the real answer lie. I have know Idea.This particular scenario is different from when i looked at another deck remodel project where the HO wanted to leave the framing alone and replace the decking and railings with Composite materials.
After close inspection of the deck I kindly let the HO know that the framing was not up to current day standards and that if I were to effect this much of the deck that I was required to bring the rest of the deck up code.
I did not get that job... oh well at least I can sleep at night.
Edited 5/29/2009 1:40 pm ET by raymond128
That was electrical, but not arguing that there are other gray areas for sure, just that the electrical is fairly specific.
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your hypothetical is what happens here.
in the city if the electrician touches one part of the wiring the whole house to be brought to code. I called my electrician about temp moving a service so I could run a cornerboard, then remount it.
He said the inspector would come and look at the wiring in the basement.
That $200 temp service move would probably cost the home owners at least $2K.
I cut the corner board around the existing mounting knuckle.
Jeff Buck Construction
Artistry In Carpentry
Pittsburgh Pa
It's simply amazing that we get anything done nowadays with all the rules regulations.
Homeowners don't want to here that their little repair could turn in thousands of dollars.another day another dollar or is it 50 cents I forget.Ray.
I think that if you notify the owner of all the code/structural/liability issues you are aware of, ask a price to address each issue, and the owner only pays you to fix part of it, you could not be held liable for the part you were not paid to fix. But you would have to cover yourself with written evidence all the way through the process.
In the programming world, the last person to touch it owns it, even if all they did was insert a single semi-colon.
I'd say you would need the equivalent of a quit-claim to start work, something drawn up by a lawyer that states the customer has been informed that the deck is unsafe and will still be unsafe after stated work is completed. Customer assumes all liability related to the unsafe deck. Have it signed, witnessed and notarized.
I am no expert on this, but there have been discussions similar to this before here where cases have been cited to show that this mechanism you suggest merely serves to prove to the judge that you knew you were doing something wrong and did it anyways. Even without the written paper, a court presumes that the professional knows better than the HO what is the right thing to do and the burden is on that pro, to do it right.An example could be a dentist who knows he has top drill deep enough to get the whole cavity out, but the patient is railing against the discomfort and demands that he stop drilling and fill it. Only the dentist can determine when he has finished getting the rot out.
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Good point.
Yeah that is what I think I mentioned before.That there must be a way to get a release form of some sort drafted up that says you informed the HO that you found some issues that could effect safety and they are now aware of and still don't want it fixed and therefore release you from any future claims that may arise from those safety issues.
The problem with a release signed by the HO, is that it doesn't apply to anyone except the HO. If a visitor falls through the deck, the HO release won't help the contractor much.
>>>I'd say you would need the equivalent of a quit-claim to start work, something drawn up by a lawyer that states the customer has been informed that the deck is unsafe and will still be unsafe after stated work is completed. Customer assumes all liability related to the unsafe deck. Have it signed, witnessed and notarized.<<<<. My friend and I talked about something like this but then i thought imagine going to court With all the paperwork you knew it was bad!!!!. Dont know all that much about the law but i would rather go with a I did not see the other bad parts or was just told to do certain parts
Here is one for you----
I looked at a house on Tuesday.
Prospective customer is a referall from a previous customer who I have done several things for-AND the extended family----------
Prospective customer just bought a house--- paid for a home inspection---only to find after closing that the house has a hole in the roof literally big enough to drop a bowling ball through !
house is an older ranch,4/12 pitch--one story. I Estimate that the roof was replaced 8-10 years ago--NO drip edge---bottom sheet of decking is bad pretty much all the way around the house--- maybe 30-40 sheets.
HOW CAN YOU TAKE MONEY FOR A HOME INSPECTION AND NOT INSPECT THE HOUSE?
this inspector should be taken out into the middle of the street,doused in gasoline and set afire.
which reminds me--- didn't our resident Breaktime home inspector mention something in a related thread a month or so ago something to the effect of-----" hey-- I am old and it's not safe for me to actually get on the roof"
My opinion---- if you are not physically able to inspect the house-----you shouldn't be in the home inspection business.
stephen
Hazlwtt
I agree, how can a home inspector get $300, $400, or even $500 to do an inspection when it is not a thorough and complete inspection of a house.To miss something that obvious is inexcusable , unless of course it is in a location that is high up on the roof and maybe behind a dormer or something.I know I would be asking for some money back on that one for sure.
I gave roof reports which are needed here separate from home inspections, They also need a Septic inspection. The Realtors know whos gonna pimp out and pass any roof to get there deal through!!!
You will find out who was at fault at the end of the trial when the judge or jury tells you. any other answer will be an ewag based on what another jury or judge did.
You got that right..Here is the deal . The home buyer ( my client) asked me to look at this deck and give an estimate. Which I did.
After telling them of the problem with deck, they were most likely have me build them a new deck.
However you can't tell the sellers, hey listen my contractor says that this deck has to go and we want you to pay for a new one.....
they would look at you and say Hmmmm I'm thinking of a NO!All they really wanted at the start of this was to get the deck repaired.
Then I come in and look at and notice that it wasn't built that great and this and that are wrong with it and it would cost even more to fix the whole thing.After telling them that if I touch this thing it now becomes my responsibility to ensure that it is safe.That statement has snowballed into.. well if the seller hires someone else to do the work can't we complain and say their contractor has to bring it up to code now.I said yeah but..... it's not going to happen. Just let them waste their money and if you still would like I will build you a new deck when you own the house.
Would I be liable if i was the last guy to work on the deck and someone got hurt?
Wrong question. Not, "will I be liable?" But, "Will I get sued?" Answer, "Yes." The problem is, if anyone gets hurt, everyone gets sued. If you fix the problem, but not entirely, you will get sued. Make sure you have adequate insurance so if anything goes wrong, you're covered. Getting sued means you already lose. Time away from work, possible insurance $$ increase, etc. Even if you win the case, you lose.
"Wrong question. Not, "will I be liable?" But, "will I get sued?"
I love your pragmatic answer. I think your accurate assessment bodes poorly for society especially if it means people either have to have every code issue addressed at once, do it themselves or do nothing at all.
You can ask us. You can ask your insurance agent. You can ask an attorney.
But if you want the correct answer for your jurisdiction, you have to ask an attorney who practices in your jurisdiction and who specializes in construction law. And you are going to have to pay him or her for the answer.
In the meantime, the safe road is to assume that the answer is "Yes, you touched it, you own it".
But maybe that is just like wasting more money on an oversized beam than what would have been spent on an engineer getting the proper sized beam. Or maybe not.
i worked my way through this thread waiting for someone to bring this up.
in your op you stated
/as a licensed contractor once I modify or repair a structure that I know to be less than structurally sound, it is my obligation to notify You as the HO and fix the deficiencies by law/
but then you ask if you are liable, and we're off and running.
it seems to me that the required practice of a licensed contractor in your area was designed to avoid such liability, under the assumption that you would face such liability if you failed to meet the required practice.