# should I sue my home builder for his defect workmanship?



## Walksing (Oct 16, 2012)

We are wanting to sue our home builder. We purchased our new home in Feb 2010 in Calgary. we had constantly condensation problem from ceiling since then . We have cooperated our builder almost four years to fight condensation problems. it has been a great suffering and made our life uneasy and painful . we really worry about the moisture and the potential of mold growth that will affect our family healthy especially for the infant. the builder is unable to resolve this problem . we decide to move forward and hire third party to fix the problem. 

so my question is- can I sue for the appropriate amount and fix the problems myself. Because I don't trust that the builder will get them done in a timely manner or do the job correctly. I think the costs are too much for small claims, but I also cant risk paying an attorney at this time. What are my options? I have proof for every claim I will make. I need some guidance. 

Thanks


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## heyjude (May 16, 2009)

Contact Alberta Home Warranty.

http://www.anhwp.com


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## sags (May 15, 2010)

Sounds like a job for Holmes......They service the Calgary area and you would know what the problem is to get it fixed properly.

And you do want to fix it properly because excessive moisture causes mold and damage to the structure of the home.

http://www.mikeholmesinspections.com/


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## nobleea (Oct 11, 2013)

heyjude said:


> Contact Alberta Home Warranty.
> 
> http://www.anhwp.com


That would only apply if Alberta Home Warranty was the company that their builder went with. Despite the name, Alberta Home Warranty is not related to the province at all. It's a private company offering warranty insurance to builders. Just like Blanket Home Warranty, Progressive Home Warranty, National Home Warranty, and others.


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## Taraz (Nov 24, 2013)

Contact a real estate lawyer and see what they say.


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## MoreMiles (Apr 20, 2011)

Asking a lawyer if he should be hired? What do you think the answer is? But that being said, it's not a bad idea to hear what the lawyer says, other than yes.


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## MRT (Apr 8, 2013)

Given that Walksing likely had their own real estate lawyer when they bought the house, they can call that office and it won't cost a dime to find out their options.


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## Ag Driver (Dec 13, 2012)

Through my home buying process I have found that the only option is to ask a specialist when asking a specialist type questions. If you are asking for legal advice -- talk to a lawyer.


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## Eder (Feb 16, 2011)

It would take about an hour to find the cause of ceiling condensation....not necessary to go to court. Spend $200 to find the problem 1st. If you know the reason for the condensation already post it here...there are a few trades guys here.


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## OhGreatGuru (May 24, 2009)

Eder has the best idea. (Although it may take more than an hour and $200.) It may not even be the builder's fault. Get an independent opinion from a qualified person as to what's causing it. (The lawyer won't be qualified to do this - he'll just hire someone at your expense to do it.) Then you'll have a better idea how to proceed. If there are certified home inspectors in your area, you could try one. Or ask your real estate lawyer to recommend one - he must run across names all the time these days with so many people making their purchase offers conditional on an inspection.


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## Mortgage u/w (Feb 6, 2014)

If you sue, what will you sue for if you don't have the solution to your problem?
You'll need to identify the problem first. As a home inspector myself, I am confident a goof inspector in your area will be able to find the problem and offer solutions. Maybe post you issue here and we can offer advice....but nothing is better than a hands-on visual.

If you're condensation is caused by excessive humidity in the house, you may have a HVAC issue where the air is not circulating properly. If you have a basement, you may be sitting on a high water table where water under and around the house is not being evacuated quickly enough (french drain, sump, exterior grading, foundation water proofing).

My legal advice if you do want to sue: 
1- take lots of pictures of the affected areas
2- obtain a written report identifing the problem from an inspector or specialist 
3- obtain a written estimate from a reliable contractor in order to rectify the problem
4- formally advise the contractor what your claim is (must be in a method which you can prove such as registered mail) and give contractor an adequate delay to perform the work.
5- If contractor does not respond or refuses to repair, then you can begin a legal claim. 
6- Once the claim is made, you can proceed with the repairs at your own costs which you will need to fight in court to get back.

**If you do repairs without first advising the builder, you will be out of luck. All evidence will be lost and you will have no case.


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## nobleea (Oct 11, 2013)

Condensation on a ceiling could also be caused by reduced or lack of insulation in the attic area directly above. That's a pretty simple observation and fix.


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## donald (Apr 18, 2011)

I second the insulation problem(this is likely)few things to note.(bats are inferior/spray foam may eliminate the problem.
-obviously it is heat loss so there could be a breach in the vapor barrier-important(even if the insulation is up to code)
-check to make sure all laundry/kitchen/and any all vents are venting outside the home and not into the roof(you would be surprised how common a mistake like this is(even if the venting and ducts ect are venting outside inspect the route they are traveling ie:through the rafters and if there is a breach/defect in the work
-soffit and roof vents may be blocked/clogged and the excesses hot air has know where to escape(inspect roof and if need be hire a roofing contractor to do roofing clearing-could even be missing shingles/flashing.
You shouldn't have condensation problems however in our extreme climate some condensation is normal(it should not cause leaking/mold but it is normal to have frost build up underneath the roofing decking--we live in canada and man cannot solve the science behind it(you are up against physics)
Just make sure you check everything and see if it could be solve 1st


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## carverman (Nov 8, 2010)

Eder said:


> It would take about an hour to find the cause of ceiling condensation....not necessary to go to court. Spend $200 to find the problem 1st. If you know the reason for the condensation already post it here...there are a few trades guys here.


Agreed> ^

Ceiling condensation is usually due to trapped heat and insufficient ventilation in the attic. The cold air condenses on the warm vapour barrier and you get moisture and black mold..not good
for health or ceilings. If the roof vents are inadequate or non -existant then a suitable roof ventilator is required. Not only will it get rid of any built up moisture, but it will serve to
keep the attic cooler in the hot summers, easing the load on the A/C. Just common sense.


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## Walksing (Oct 16, 2012)

Mortgage u/w said:


> If you sue, what will you sue for if you don't have the solution to your problem?
> You'll need to identify the problem first. As a home inspector myself, I am confident a goof inspector in your area will be able to find the problem and offer solutions. Maybe post you issue here and we can offer advice....but nothing is better than a hands-on visual.
> 
> If you're condensation is caused by excessive humidity in the house, you may have a HVAC issue where the air is not circulating properly. If you have a basement, you may be sitting on a high water table where water under and around the house is not being evacuated quickly enough (french drain, sump, exterior grading, foundation water proofing).
> ...


 thank you for your detailed advise , I think I am the right track for potential legal claim


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## Walksing (Oct 16, 2012)

carverman said:


> Agreed> ^
> 
> Ceiling condensation is usually due to trapped heat and insufficient ventilation in the attic. The cold air condenses on the warm vapour barrier and you get moisture and black mold..not good
> for health or ceilings. If the roof vents are inadequate or non -existant then a suitable roof ventilator is required. Not only will it get rid of any built up moisture, but it will serve to
> keep the attic cooler in the hot summers, easing the load on the A/C. Just common sense.


the builder is thinking oppositely that the insulation is too much .


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## alex52 (Dec 12, 2013)

Find the cause of the condensation. 
Simple physics, warm moist air coming in contact with a cold surface results in condensation.

Lawyers and litigation is the last thing you want to do. Your builder will have ten reasons why the condensation is not thier fault e.g. your lifestyle is causing the problem.

Get several independent opinions for the cause.


Get estimates for the cost for rectification. 

Then you have ammunition to confront the builder, if its a construction problem.


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## Mechanic (Oct 29, 2013)

I know someone who had a problem like this. Lived in the house for over a year. always had high humidity and could never seem to get it down. First excuses were that it was common in new houses and would resolve itself. Went on for a long time till finally builder went in attic and found vent lines disconnected from vents. Of course they blamed it on the insulation guys for knocking the hoses off. I believe after getting all connected back up its good now. Simple enough to check anyway, you never know.


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## carverman (Nov 8, 2010)

Walksing said:


> the builder is thinking oppositely that the insulation is too much .


Without seeing pictures, we are only guessing at it.
Here are some possible scenarios..I would think:

1. Insufficient insulation. (R20 (6 inches) or less)
Solution: Need to add more insulation (at least 6" more,blown in or fiber glass batts added crosswise to existing layer in between roof trusses;
minimum should be R40 (12") in the attic in our very cold winters. 

2. Too much humidity in house air, and not enough ventilation in attic. Vents are necessary to allow air to circulate and dry out. Sofit vents may not be enough.
You need at least one roof vent or depending on construction, a wall vent on the peak area (gable) of the roof. 

3. Incorrect placement of vapour barrier (polyethelene)
If you live in an area where freezing occurs, a vapor barrier is critical. Without a proper vapor barrier you will experience a serious condensation problem. Be certain that the barrier is installed on the warm side of the insulation. Stapling is the usual method of attaching the plastic to the framing members.


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## Mortgage u/w (Feb 6, 2014)

Walksing said:


> the builder is thinking oppositely that the insulation is too much .


The builder may not be all that wrong....today's construction code makes our homes OVER-insulated locking in all the humidity and stale air indoors. That's why its mandatory to have an air exhchanger installed in all new construction. Air exchangers are very important and are often overlooked. Critical that they function properly, maintained regularly and home owners fully understand their purpose.

I am not convinced you lack insulation in the attic nor have poor ventilation (as most have speculated). This would be true if the condensation was evident IN you attic - not UNDER you're ceiling. If it were you're attic the problem, you would have to have NO insulation in the attic and an excellent ventillation to make you're ceiling cold. Think about it: if you had poor ventilation in the attic and no insulation, then all the heat in your home would travel into you attic and stay there. Why then would the ceiling condensate? You attic would be another story - that's where you would find the condensation. For the condensation to occur on your ceiling, the attic would have to be extremely cold. For it to be cold, you would have to have a excellent ventilation. (we're assuming winter season of course) And if you had no vapour barrier, the heat and humidity of your home would travel straight into your attic. Remember, gypsm is pourous. So I would almost rule out the attic as being the culprit.

What's happening with your window's? Are they condensating too? Basement - what's happening there? Are your bathroom and kitchen fans properly exhausting outside? Is your air exchanger properly hooked up and functioning? Sometimes they confuse the ducts and connect them backwards - instead of eliminating indoor air, it will simply keep it in and recirculate the same air. If that's the case, you will definately have a humidity problem. 

Again, this is all speculation here. I am just going by what I see most often in my inspections and based on the issue you mentioned.


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## donald (Apr 18, 2011)

There is a misconception about suing and the realities of litigation is vastly different than the ''fantasy'' about ''sticking'' to the ''builder''
Take it from someone who is litigating right now!!
Your not the 1st person that has likely tried(key word)tried to sue this builder likely(big builders have lawyers in place and expect from time to time for the odd client to sue.
Your going to spend a few grand to start the process and if you have a good lawyer he/she is likely going to tell you,you don't really want to this(you can't be 100% certain it is fact the builder)
If you decide and send a demand letter(the fantasy here is this will get you victorious and scare the builder?)but....they don't back down and you move into the discovery stage(and know this is where the bills and emotions start to mount)Now it's not about the money but pride?are your pockets deep enough to truly take on this corporation?
You want to spend 2/3 yrs fighting this?
I know i am a black sheep sheep around cmf and a lot of people here don't like me and you won't likely engage me but i doubt very much you really want to sue.
It is cheaper and easier to fix the current problem without taking legal action.
Litigation is worse than a condensation problem.


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## marina628 (Dec 14, 2010)

We had multiple issues with our builder , one being very major as they put a small door into our bedroom en suite which made it impossible for my wheelchair to access.We had them fix this one but many other issues we dealt with on our own as we felt probably even if they made the attempt it would not meet our expectations.I have suffered through one lawsuit and I have to tell you it is not something I would easily get into again.


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## OhGreatGuru (May 24, 2009)

Walksing said:


> the builder is thinking oppositely that the insulation is too much .


In principle, condensation cannot be caused by "too much" insulation. It could do so only indirectly if the insulation was piled so high it was obstructing the roof/attic ventilation in some way (and there are ways this could happen - usually at the lower points in the roof.). Which brings it back to being an installation problem. But that is all hypothetical until you have someone determine the cause in your case.


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## Walksing (Oct 16, 2012)

Mortgage u/w said:


> The builder may not be all that wrong....today's construction code makes our homes OVER-insulated locking in all the humidity and stale air indoors. That's why its mandatory to have an air exhchanger installed in all new construction. Air exchangers are very important and are often overlooked. Critical that they function properly, maintained regularly and home owners fully understand their purpose.
> 
> I am not convinced you lack insulation in the attic nor have poor ventilation (as most have speculated). This would be true if the condensation was evident IN you attic - not UNDER you're ceiling. If it were you're attic the problem, you would have to have NO insulation in the attic and an excellent ventillation to make you're ceiling cold. Think about it: if you had poor ventilation in the attic and no insulation, then all the heat in your home would travel into you attic and stay there. Why then would the ceiling condensate? You attic would be another story - that's where you would find the condensation. For the condensation to occur on your ceiling, the attic would have to be extremely cold. For it to be cold, you would have to have a excellent ventilation. (we're assuming winter season of course) And if you had no vapour barrier, the heat and humidity of your home would travel straight into your attic. Remember, gypsm is pourous. So I would almost rule out the attic as being the culprit.
> 
> ...


thank you Mortgage u/w for your input, is the vapor barrier in the ceiling mandatory ? I can't find it when we drilled the hole on the ceiling . it probably wasn't placed on warm side .


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## NotMe (Jan 10, 2011)

One thing to consider is that sueing and winning a judgement is a million miles away from getting paid and the problem fixed. Quite frankly, something I learned a long time ago was leverage is key - and you don't have much leverage here unfortunately. I'd suggest you spend the money to fix the problem rather than throw it at lawyers and expert opinions.


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## Mortgage u/w (Feb 6, 2014)

Walksing said:


> thank you Mortgage u/w for your input, is the vapor barrier in the ceiling mandatory ? I can't find it when we drilled the hole on the ceiling . it probably wasn't placed on warm side .


Absolutely mandatory by today's standards. Its the only thing that keeps the humidity you generate daily (from cooking, shower, breathing!) out of the attic - hence the term 'vapour barrier'.

Sometimes you may not notice if the vapour barrier is present with a small hole drilled from below. There is about half an inch gap between the barrier and gypsm. You would need to get into the attic and look beneath the insulation. Pop your head through the attic hatch and dig the insulation around you. While there, notice if the ventilation in there is good and if you have condensation on the rafters or deck. Temperature in there should be very similar to the outside temp. Check to see if you see daylight around the edges. If completely dark (don't go at night), its a sign you soffit vents are blocked.

What does the exterior of your roof look like? Is there snow on it or all melted? Do you have large icicles hanging down the edges? Compare what you see to your neighbors' and note the differences if any. Just an example; if all your neighbors have snow on their roof vs yours has none or noticeably less, and lots of ice forming on yours vs neighbor, that is a clear indication you attic is deficient - it either lacks insulation or no vapour barrier or poor ventilation or a combination.


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## donald (Apr 18, 2011)

The breach in the vapor barrier will not be the vapor barrier itself but at the seams.
you have to look where there is jet outs or ESP in corners ect.
It's the lack of acoustical seal/tuck tape where your problem lies if it is the vapor barrier.
The vapor barrier is in direct contact with the underside/backside of the gypsum board(there is no gap)
Hire a contractor for a consultation(roofing company that specializes in heat loss)
Don't go messing around your attic if your versed in construction you need to know where and how to walk in the rafters ects or chances are high you will damage something or put a foot through your bedroom ceilings lol(when everything is covered in insulation it can throw you off!
Peace.
I am a roofing contractor.i am giving you the goods here...take it


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## Mortgage u/w (Feb 6, 2014)

donald said:


> The vapor barrier is in direct contact with the underside/backside of the gypsum board(there is no gap)


Not sure what the building practices are in your area but usually gypsum is not screwed in directly to the joists but rather to cross beam battens which are 1/2 inch thick. The battens serve several purposes including cross bracing of the joists, air circulation between gyps and vapour barrier, better hold of vapour barrier and insulation, provides a smoother surface and ease of gyps install, can also be useful to phish wires later on. Some contractors will cut corners and omit the battens but in my opinion, I think they are nesessary. So the layers I recommend are, joists, vapour barrier, battens (perpendicular to joists), gyps. The insulation is contained between the joists and held up by the vapor barrier.

donald, I understand you are a roofing contractor and knowledgable in that area....but I am a home inspector and knowledgable in construction flaws.

In any case Walksing, figure out your condensation problem before you tackle the vapour barrier debate!


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## donald (Apr 18, 2011)

Interesting mortgage u/w,here in wpg man, seldom are the bottom cords of the rafters strapped out,it meets code to fasten drywall directly into the rafters.(residential)
Of course it is smart to strap out the ceiling,this is common practice in your area?what area is this?


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## Mortgage u/w (Feb 6, 2014)

I'm in Montreal.....majority of new construction here is done with gyps screwed to battens on ceiling as well as insulated walls. I must correct myself because it is not a defect if battens are not used....however, in my opinion, it does make sense to have them. In any case, I was just pointing out that if Walksing was unable to feel a vapour barrier through the hole he made in the ceiling, the spacing may be the reason.


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## donald (Apr 18, 2011)

Mortgage,with you being a home inspector and we are taking about vapour barrier i have a question about battens.
If installed,one would have double(if not more)direct punctures into the vapour barrier via double fastners(the straps and than the drywall and even more so if you did that on the inside of the outside walls.
If one wants air tightness,one would think the least amount of punctures are superior ie(acoustical sealants ect are superior because one is not breaching the poly)
Thoughts?I have had this discussion with a inspector once before and would like to hear your take?


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## Eder (Feb 16, 2011)

The houses built in the 60's are better than the houses today...much healthier...sealing a house too tight then hoping outside air coming in thru a heat exchanger will do the job is ridic. No wonder every one these days gets sick...they are breathing old air. I wont go on, but after all my years in construction nothing has been a larger farce than LEEDS.

Gas heat is cheap compared to having modern day home problems. Leave some windows open a bit,especially in winter...you will never have off gassing or mold problems...


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## Walksing (Oct 16, 2012)

just got report from an inspection company . from his investigation, All indications are that the moisture problems in the home is being caused by the foundation passing water from the outside.
the inspector also found the fixed big crack on the foundation wall . this crack was covered by vapor barrier and wasn't disclosed by builder when we purchased this house. 

my question is if the builder is responsible to disclose this big defect before we purchased the house ? 
BTW, we regretted our decision to buy this house without inspection since we believe the new home is under warranty .


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## Mortgage u/w (Feb 6, 2014)

So my initial assumption was correct - water around the house not being evacuated properly. This condition is often taken lightly but can cause major problems to the home. Ensure your french drain is working properly, do you have a sump? Install or correct gutters and ensure the water is discharged at least 6 feet away (if possible) from any foundations walls. Correct your grade - make sure you have a nice slope leading water away from foundation. If the foundation and/or floor slab is causing so much condensation, is seems evident the foundation was not water-proofed. Vapour barriers should be installed before the slab is poored and the foundation walls should be water proofed as well before backfilling.

As for the crack, it will be hard to fight this one. If the crack is visual, the contractor is not obliged to declare it since he will assume you (or an inspector) will have to see it and mention it. If you end up in court, you will have to prove why and how the visual crack was somehow not visible. Basically, you only have recourse on latent defects, not visual ones. If you overlooked a defect that was visible or not hidden, it is assumed you DID see it and decided to accept it. A home inspection would have definately saved you quite some trouble.

If water is infiltrating through the crack, get the contractor to fix the crack properly by injection and covered with an adequate membrane. As for the humidity seeping through the foundation, you'll need to find measures to evacuate water as quickly as possible. If you have a high water table, a sump will help assuming your french drain is ok. French drain replacement is costly.

Donald, to answer your question about battens, you will never get a perfect seal with a vapour barrier. To acheive that, one would need to seal every single nail, puncture and somehow caulk the perimiter - you get the idea....so with or without battens, you will never eliminate all punctures. As long as the punctures are not in the void, it is not that big of an issue. Also, that 1/2 inch gap you have created will act as ventilated space. Humidity in that space will get vented before it will have time to penetrate through those tight punctures. When and if it does penetrate through, it will have almost the same temperature as the air above it and eventually exhaust out through the attic. Basically, the extra punctures should not be a detterent to installing battens.

To Eder's point, I totally agree. Although the homes back in the day were breathing better, there are several construction practices today which are far better. Back then, homes were not air tight and air was continously exchanged. Heating bills were another story. And I agree that we should not be relying solely on an air exchanger to refresh the air. Open those windows a few minutes every other day and you will have a much healthier air quality.


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