“To model how flames turn buildings into ashes, the nation’s leading fire researchers don’t play with matches over the sink. Instead they burn down entire homes, cubicles and warehouses.

“At the National Institutes of Standards and Technologies, researchers set huge fires under a 40-foot-long by 30-foot-wide exhaust hood that is connected to an $8 million control unit.

Link to Article

“Manhattan prosecutors are investigating whether the leading concrete testing company in the New York area, which has been hired to measure and analyze the strength of the concrete poured at some of the biggest construction projects in the city, failed to do some tests and falsified others, officials involved in the inquiry said on Friday.

“The investigation has uncovered problems with tests the company conducted on concrete poured over the last two years at the new Yankee Stadium in the Bronx and the foundation of the Freedom Tower in Lower Manhattan, along with as many as a dozen other projects, said several of the officials, who spoke on the condition of anonymity because the investigation is continuing.

“The investigation has also raised questions about past work done by the company, Testwell Laboratories Inc., at a wide range of sites around the city. Construction and inspection practices in the city are already under scrutiny as a result of a series of fatal accidents and arrests on corruption charges.”

This article is fascinating on a number of levels. First, who would have thought that the New York Times would run an article that goes into such detail about concrete testing, specifically slump tests? Secondly, and perhaps more notable, law enforcement is conducting an investigation into the practices of a noted high profile concrete testing firm. But it isn’t just any law enforcement division, it is the Manhattan District Attorney Office’s Labor Racketeering Unit. Racketeering? That’s a serious charge.

It should be noted that Testwell Laboratories, Inc. (website appears to be down – here is the Google cache of the site) provides much more than concrete testing, offering a full range of testing services including geotechnical, metallurgy, construction materials, petrographic and chemical. Testwall Laboratories, Inc. describes itself (ironically) as “an independent full-service testing, inspection, quality control and quality assurance organization that has earned a valued reputation for reliability and professionalism in the construction industry“. [Emphasis added.]

Link to Article

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“In a case that is being closely watched in the multi-family housing industry, the Ninth Circuit Court of Appeals yesterday released its opinion affirming the lower court’s holding that the 2-year statute of limitations for a private civil action alleging violation of the Fair Housing Act’s accessibility requirements for design and construction is triggered, i.e., the violation is complete, at the conclusion of the design and construction phase, which occurs on the date the last certificate of occupancy is issued.”

It seems that for the foreseeable future, accessibility claims under Fair Housing Act will be subject to a two year statute of limitations after all. This means that plaintiffs only have two years from the occupancy date to file a claim for such violations. This is quite favorable for developers, contractors and designers but may go against the intent of the Fair Housing Act, as illustrated by dissenting Circuit Court Judge, Hon. Judge Fisher:

“The majority erroneously treats a building’s improper design and construction as the event that triggers the Fair Housing Act’s (FHA) two-year statute of limitations. It does so by finding an ambiguity in the statute and then resolving that ambiguity contrary to the overall purpose and structure of the FHA and its legislative and judicial history.

“I believe instead that the most plausible reading of the statute is that the limitations period begins (at the earliest) when a disabled person actually experiences discrimination — either in attempting to buy or rent a noncompliant housing unit, in “testing” such a unit or upon moving in as a tenant.

In other words, Fisher feels that the two year statute should begin following discovery of such a violation. However the majority opinion from the Ninth Circuit felt that this two year statute should begin once the work is done. So what happens if a property is completed, but nobody moves in for two years? According to this decision, if there is a violation of the Fair Housing Act that creates a situation that is discriminatory, nothing happens at all.

Link to Article, Link to Post from Ninth Circuit Opinions Blog, Link to Opinion (PDF)

The number of local construction-defect lawsuits has risen alongside the valley’s population. And one reason for this may be the heavy regulatory burden assumed by the area’s building and safety officials who oversaw all the area development.

County officials say that at the height of the building boom some inspectors were doing as many as 70 inspections a day. In response to reports that county building inspectors were conducting as many as 120 inspections a day during 2004 and 2006, Clark County Director of Development Services Ron Lynn said those numbers never got higher than between 60 and 70.

This article seems to echo the sentiments of many outsiders to the construction defect industry – that it is the responsibility of the local building departments (i.e.: the government) to prevent construction defects by policing contractors. In order for such a situation to exist, the local official would have to be on site at all times, or at least on a daily basis, at every single project. Instead, officials perform periodic inspections at certain key points in the construction of a project. For this reason, it is almost unheard of to see successful legal action taken against building officials for construction defect claims. Although some forward-thinking developers employ third party consultants to maintain an active presence during construction, this is not commonplace, especially in the production housing segment. Those developers that have relied upon such quality control consultants, have very little exposure in terms of construction defect claims, as problems are corrected as they arise. Until this practice becomes more widespread, homeowners will continue to rely upon construction defect consultants, such as SHCC, Inc., to aid in resolving these issues.

Link to Article

The secret room in the old mill home on Whitten Street in Greenville’s Dunean section contained a handwritten letter from the previous owner titled, “You Found It!”

“Hello. If you’re reading this, then you found the secret room. I owned this house for a short while and it was discovered to have a serious mold problem. One that actually made my children very sick to the point that we had to move out,” Kerri Brown read from the letter.

According to the note, there was so much mold, it made the last family who lived there sick, and they were forced to move out.

This story received quite a bit of press, but not everyone told the same story. After further research here is a brief summary:

• George and Tricia Leventis purchased a home at Number 6 Whitten Street in Greenville, South Carolina. After living in the home, several members of the family became very ill. Mold was found in the home, and doctors blamed the mold on the medical conditions.
• The family could not afford to remediate the mold condition, so they walked away from the home. Foreclosure ensued.
• Before leaving, George Leventis left a note in a concealed area describing the condition. His reasoning: once the house went back on the market, the bank/realtor/other interested parties would not want such a serious mold problem readily visible, so leaving the note in the open would have been fruitless.
• Jason and Kerri Brown later bought the home. As Mr. Leventis suspected, the Browns never received disclosure regarding any mold condition. The pre-purchase inspection likewise did not turn up any mold concerns, as the problem was somewhat concealed. (Don’t take the word of a pre-purchase home inspector as final!)
• The Browns, upon discovering the mold and the letter from Leventis, hired Hendrix Consulting Engineers to evaluate the home. Samples came back with elevated levels of various mold species including the infamous Stachybotrys – the so-called toxic mold of lore. According to the company’s principle, Steve Hendrix, the house was “probably a seven,” on a scale of one to ten, in terms of infestations.
• The estimated remediation costs allegedly exceed the purchase price of the home.
• The Browns filed a lawsuit against the realtors and the lender, Fannie Mae.
• Fannie Mae has recently agreed to purchase back the home at the original price of $75,000, and have thus been released from the litigation.
• The lawsuit against the real estate firm and the agent that sold the home.

Link to Article, from Boing Boing and BLDGBLOG

Undersize gusset plates in the Interstate 35-W bridge in Minneapolis were “the critical factor” in the bridge collapse last year that killed 13 people and injured 100, the National Transportation Safety Board said Tuesday.

Chairman Mark Rosenker said the plates, which connected steel beams, were roughly half the thickness they should have been because of a design error. Investigators found 16 fractured gusset plates from the bridge’s center span, he said.

“It is the undersizing of the design which we believe is the critical factor here. It is the critical factor that began the process of this collapse. That’s what failed,” Rosenker said.

Interestingly, the bridge was found to be deficient structurally according to the federal government for nearly 2 decades, calling in to question the state’s maintenance. The legal outcome of this should prove interesting.

Link to Article, from Drudge Report

Link to Video

• At the top of this year’s holiday wish list for anyone in the construction defect investigation business is the Rigid SeeSnake micro Inspection Camera. This would almost fit on my tool belt. Link to Article, Link to Product Page
• Next up is a nail assist device to guide your nail into the board and away from your your thumb. Link to Article
• And finally, the very awesome ToolMonger.com brings us not one, not two, but three outstanding tools worth looking into:
  1. The Thinking Man’s Duct Tape
  2. Felker’s New/Improved Tile Master XL Plus
  3. Spatula-Tong Combination BBQ Tool

Experts estimate that the average new house will exhibit three to 14 construction defects. Some builders have a reputation for standing behind their work and quickly fixing problems, whereas others drag out repairs.

No one keeps a comprehensive public record of construction defects or the building industry’s response to them, making it difficult for the average home buyer to research a builder’s track record of quality and customer service.

Chief among the points made that indicate bias are regarding builders’ response to defects and the “new legislation in California.” (That would be SB-800.) In the article the reporter slams builders that repair defects quickly without disclosing such repairs. Some of the points made about binding arbitration are well taken, but a builder that responds with repairs to homeowner complaints is good customer service – not deceptive practices. Overall, the article attacks builders but does not offer any proposed solution to the problem.

This reminds me of a story from a decade or so ago… A man purchased a Rolls Royce and was motoring along (you don’t cruise or drive a Rolls, you motor along in one) when he noticed a problem. One of the struts was broken. The new owner was somewhat perturbed, understandably, and contacted the nearest Rolls Royce dealer. Shortly thereafter a mechanic showed up and replaced the strut on the side of the road. He wouldn’t accept payment of any kind. The owner of the vehicle tried in vain the next day to contact Rolls Royce regarding his repair – after all, a part like that in a Rolls would probably cost over $1000. He at least wanted to thank the man that helped him out. Finally someone at the company explained to the owner, there was no such repair man – “a Rolls Royce does not break down on the side of the road.” That story may not be true, but it does make a point.

Link to Article

At the peak of the recent housing boom, home buyers scooped up a million newly built homes every year while homeowners poured more than $200 billion into renovations. But now stories of shifting soil, leaky roofs, damaged stucco and other construction defects abound.

Though many builders have worked to improve the quality of their houses over the past decade, says Alan Mooney, president of Criterium Engineers, a national engineering firm, the building frenzy also opened the door for unskilled labor, unscrupulous contractors and untested products.

“When everyone is out there building as fast as they can, that does result in more defects,” he says.

Link to Article

• This Old House Home Inspection Nightmare Series:
  • Home Inspection Nightmares Part 1
  • Home Inspection Nightmares Part 2
  • Home Inspection Nightmares Part 3
  • Home Inspection Nightmares Part 4
  • Home Inspection Nightmares Part 5
  • Home Inspection Nightmares Part 6
  • Bonus link: Worst Design Ideas
• Black mold warps family’s dream into nightmare
• A new building block made from the pressurized byproducts of coal-power plants saves energy and cuts down on pollutants: Popular Science Invention Award – Fly-Ash Brick
• “In Jeld-Wen, Inc. v. Superior Court (2007 D.A.R. 233 (January 4, 2007)), the California Court of Appeal held that trial courts do not have the authority to order parties in a complex civil action to attend and pay for private mediation.” Link to Article
• Arbitration of Construction Defect Claims Likely to Increase
• Homes Examined for Construction Defect Lawsuit
• “Hate him or love him, the fact is that Armando Montelongo from Flip This House is doing what so many of you only wish you could – work for ourselves on our own terms.” Link to article, Montelongo’s website

In my construction defect investigations I focus on the “what” so much I rarely think of the “why.” However, from having been a builder and a construction company manager, I do understand the “why” really well. It wasn’t until I read the article from Mr. Reynolds that I connected the two.

The article about working under constraints gave me a little flash of enlightenment about why we have construction defects. Tract builders/developers today have the toughest restrictions of anybody if you think about it. They have to have something that “looks different and appealing” but is the same old mass produced product that will compete with the price-per-square-foot that the market will bear. The developer has to depend on superintendents that bring the project in on time and on budget but do it without beating the sub contractors so hard that they become resentful and leave out key components to stay on budget (time and money wise).

The superintendent has to hire the most cost effective subcontractors that move fast enough to keep from slowing down the assembly line but meet the budget. The sub contractors must figure out what materials to substitute to get the job done but still turn a profit and make it faster for their workers to assemble in order to stay on schedule.

The sales staff has to convince the home buyer that they are getting a product “custom designed for them” but that is really the same mass produced product will little changes so; A. it doesn’t slow down production, B. it doesn’t impact the budget, C. the “custom features” are not recognizable to the next buyer when just before the close of escrow they find out the buyer didn’t really have his home sold and can’t qualify for the loan.

None of this makes it OK for homeowners to live with construction defects. The problems still must be corrected. However, maybe we all need to look at our expectations tempered with what is reasonable and find a way to change the system.

If the home developers want to survive, and the companies that insure them want to limit their losses, the answer is in looking at what Nissan did. Nissan, formally Datsun, used to make little, cheap cars that didn’t last long. They changed their perspective, put a lot of pride into doing it right, cared enough about the customers to want to earn the right to sell a select group of people new cars every three years for a lifetime, instead of selling a lot of people one car, one time.

Link to Article

“Here’s our money, we trust you, just come into our homes and devastate our lives,” a Home Depot customer tells NBC4. “It’s just been a nightmare,” says another.

Now Home Depot is a company that not unlike Wal-Mart, has its share of fans and foes. The fairly common home improvement supply store is a wonderful place for do-it-yourself types and professional contractors alike. The inventory at most locations runs the gamut of what most people would need for even some more complex projects. Part of the Home Depot experience includes (besides a futile search for employees with much construction experience) numerous advertisements for “installation services.” The basic situation behind this is that Home Depot contracts work to various subcontractors to install materials and components supplied by the retail emporium. The convenience is tantalizing. The possible results may not be.

NBC 4 (Los Angeles) has undertaken a series of investigations spurred by reports of fraudulent and downright unpleasant business practices related to Home Depot’s contractors. The reporters are Joel Grover and Matt Goldberg.

• Part 1 of the series shows a situation in which a Home Depot roofing contractor gives a recommendation and cost estimate to replace an entire roof without ever setting foot on the roof. Unfortunately, the roof had been thoroughly examined by a former LA City Housing Inspector shortly before the contractor’s visit. Following this first report, Home Depot responded to questions from NBC and issued a carefully worded statement although they declined an on-camera interview.
• Part 2 gets down and dirty and includes reports from several former customers of the Home Depot services program that indicate defective construction and code violations. Again, the retail chain issued a response but did not participate on camera.
• Part 3 aired this week and is perhaps more hard-hitting than either of the other two reports. This time, internal documents from the company and further interviews give the indication that the company has a policy of up-selling contracting services. In this report, however, a representative of Home Depot does speak on camera, even though he had to use cue cards…

My personal experience with the Home Depot in Hemet, once to put in countertops and another for floors in my own home, were both positive. I believe their problems relate to sub contractor selection and supervision. This is the same problem that plagues the whole building industry, and part of why I don’t build anything anymore. Subcontractors (roofers for example) all look good on the surface, but they also are depending on their sales staff and workers to produce the completed product. I believe the root of the problem involves time and budget deadlines that are necessary to stay competitive and profitable, that lead to workers cutting corners and out right cheating to keep up. The problem is not new, it has always existed, but is more noticeable now with media coverage. It would be interesting if you had statistics to go with the investigative news shows. How do the “Bad examples” stack up statistically to the “Good examples” (such as mine)?

From Consumerist

Link to Article

Wynton Marsalis has long been renowned for his musical abilities, but he also was recently honored for his talents in leadership. The USA Today recently published an article consisting of a question & answer session with Marsalis regarding his thoughts on the connection between jazz and business leadership. Link to Article

I’ve (in my past history) been a spectator to jazz by having a son deeply involved in it and the music business. The concept and performance of jazz has always amazed me. I played the Trumpet in school but was never great at it. The music “protocol” I was exposed to involved performing someone else’s written music under the strict supervision of the director. This is similar to my years as a General Contractor building custom homes and custom home remodeling. I was always “performing” to the written details of the customer and the Building Department.

Jazz is all about taking what you are given (the root melody) and using your experience and skill to find the right notes, rhythms and style, to provide the maximum performance, every time you get your instrument out of the box.

Construction Defect Investigation is similar in that there are no written protocol to the investigation other than “don’t miss any thing that can or is causing a problem,” on behalf of the client that you are working for. This is true from both plaintiff and defense perspectives.

In the article by Wynton Marsalis, I feel the following parallels with the tips he offers:

“Everything in jazz and business starts with integrity. Listen to others. Respect them. Build trust.”

In my business, if you ever lie, your career is over, immediately. You do have to listen to other’s opinions and filter their opinions with your own experience and background. Working with others in a non-confrontational manner builds a trust that allows for successful mediation.

“Groups who work together ‘swing.’ They believe ‘we’ is more important than ‘me,’ and by doing so, absorb mistakes.”

Establishing mutually respectful relationships with all those you work with, regardless if they are on “your side” or “the other side” is important. Those in the past that have been so arrogant as to believe “their opinion was the only right opinion” are mostly no longer with us in this business (construction defect investigation and litigation).

“You can be creative inside or outside of tradition. Inside, you reinvigorate. Outside, you counter-state.”

You can never stick with the same investigative system and report production format that you or others have just because “That’s the way we’ve always done it.” You always have to push the envelope to find new ways to investigate (to save the client on case costs and yet never “leave any stone unturned”) and report formats that make the transfer of information easier for all to grasp and use.

“Creative people dare to be laughed at. They don’t act like what they are. They be what they are.”

I’m sure there will be a lot of people laughing at me for writing this blog, but I believe there will be some that get something out of it and those will be the ones we are providing this service for, for free.

“Embrace opposites. They are, in fact, the same.”

There are a lot of opposites in the small community of Construction Defect Litigation. I’m not sure I can embrace them all, but I will try to listen and at least understand where they are coming from; even if it is out of this solar system.

The thing about Jazz musicians is that they are never done “getting there.” They are always looking for ways to improve and get more out of what they have to work with. At Steve Hill Construction Consulting, Inc. we are always looking for ways to do a better investigation, write a more informative report, that can be understood and used by more “players” in the system, to find a faster route to mediation, for the combined benefit of all involved. I am always looking for ways of stretching my skills. That is why in the last year along with construction defect investigations I also got involved with a Criminal investigation (for the California Attorney General), a Wrongful Death Investigation (on behalf of a corporation that owned a medical office), and a Home Owners Association (investigating improper construction defect remediation). I feel the more varied your experience background is, the better your investigative and report writing skills will become, to the benefit of your clients.

Where this might really make an impact is on roofing consultants that are involved as experts on construction defect cases. There are many consulting firms with no employees – SHCC is one. But if that firm relies upon a C-39 Roofing contracting license, they must obtain worker’s comp coverage or show proof of self-insurance, or face losing their license.

Link to Article

Cyntia Scharf brings up a New Jersey case that shows just how crucial this issue can be:

If you are planning to sue to recover damages relating to construction defects, don’t destroy the evidence of the defects before the defendants have had a reasonable opportunity to inspect and document them. Such premature destruction of evidence could destroy the strength of your case.

The plaintiffs in the case destroyed evidence in the form of a failing greenhouse that was causing damage to their home. The defense argued that they did not have the opportunity to inspect the evidence and would have to rely upon the plaintiff’s expert. They convinced the judge that the plaintiff expert’s photos and reports should be excluded. Without evidence, and without the plaintiff expert’s documentation to rely upon, the case was pretty much over.

Link to Article

Link to another article on the same topic