Q: If a ceramic-tile floor is failing in our less than 10-year-old home, does the builder have an obligation to replace it if it was not installed properly? Are there minimum requirements that have to be met when installing a ceramic floor in new construction? — Sheila
A: There are well-established industry standards for setting ceramic tile, published by the Tile Council of North America (TCNA), in its annual TCNA Handbook for Ceramic, Glass, and Stone Tile Installation. The guide shows a variety of acceptable techniques for installing tile in nearly every type of application, including wood and concrete floor systems, wet and dry areas, and so on. These standards, in turn, reference more technical ASTM standards that govern such things as the strength of the tile, mortars, and adhesives.
The standards in place at the time you floor was done could be used to establish minimum requirements for proper workmanship. Sometimes, defects in the materials or workmanship are clear-cut. For example, the subfloor is not stiff enough, so the tiles crack from excessive deflection. Or the installers did not use enough adhesive to make adequate contact with the tiles. In other cases, it would take a good deal of research to determine the cause of failure – often resulting in competing claims from “expert witnesses” in court.
Even if you can clearly demonstrate that mistakes were made, it is unlikely that you will have much luck getting the original contractor to make repairs. Few warranties, whether from the contractor, third-party warranty companies, or state required “implied warranties” last for 10 years. Also new home warranties may not transfer in full to buyers after the original owner.
There are three main sources of warranty protection in new homes: Express warranties provided by the builder, third-party warranties purchased by the owner or contractor from warranty companies, and implied warranties governed by state law. Each state has its own warranty laws, and in some states, the rules are different for spec houses and custom homes. For a summary of the laws, state by state, visit the Nolo Press which specializes in helping consumers with legal issues. By all means, contact your state’s Consumer’s Affairs or Attorney General’s office to find out what rights you have under your state’s laws.
It’s difficult to generalize, but most warranties cover materials and workmanship on most parts of the house of one year. Mechanical systems such as plumbing, heating, and electrical may be covered for 2 to 4 years, and major structural defects may be covered for up to ten years. Each warranty has specific limitations as to what exactly is covered, for how long, and under what conditions. Coverage may be denied if the homeowner did not perform required maintenance, if the problem is considered normal wear and tear, or was caused by other work you had done. Parts of the warranty may cover materials only or labor only and may be pro-rated. Read the fine print and watch out for “weasel words”!
If a problem is due to a manufactured product rather than workmanship, whether a heating system or roofing shingles, it is usually covered under the manufacturer’s warranty rather than the contractor’s. Many of these warranties are for materials only and are pro-rated. So for roofing shingles that fail in 10 years rather than 20, you may get 50% of the cost of the shingles, which may represent less than 25% of the cost of the entire job.
As soon as you discover a problem, document the issue with dated photos and written notes, and notify the contractor or warranty company right away – before any critical deadlines are passed. It’s best to notify the contractor in writing, preferably by certified mail. Keep copies of all correspondence with the contractor or warranty company so you can document that you initiated the claim within the time required.
Even if there is no warranty coverage or it has expired, you should document any serious defects. In some cases, the contractor may be held liable due to negligence or breach-of-contract if you can prove that that the problems were caused by the contractor’s failure to follow the plans, specifications, manufacturer’s instructions, or industry standards as required in the contract.
Of course, any solution involving the contractor requires that you can locate him, that he is still in business, has not declared bankruptcy, and cooperates in honoring the warranty. If the contractor is not cooperating, a good place to start is with the state’s contractor licensing authority, which may assist you in filing a complaint.
If the contractor drags his feet or denies your claim, you may need to contact a lawyer to help you decide whether the issue is worth pursuing legally. Sometimes, a lawyer’s letter and threat of a lawsuit is enough to get someone’s attention and can help you to reach a resolution. Even when lawsuits are formally filed, the vast majority are settled out of court. Actually going to court is rarely worth the time, effort, and money unless tens of thousands of dollars are at stake.
Some contracts, where allowed by state law, direct disputes to binding arbitration rather than court. Arbitration has pros and cons and often results in a compromise rather than a clear winner or loser. It is generally less expensive to pursue, but can still cost thousands of dollars. Non-binding mediation can be another, cheaper approach if your contractor is willing to give that a try in an effort to find a mutually agreeable resolution.
The bottom line is this: All warranties are limited by the fine print, often to the point where they are not worth much. Even a well-written warranty is only as good as the person or company that stands behind it. Only hire reputable contractors who stand behind their work. And only buy building materials from reputable suppliers and manufacturers with a strong track record of backing up their warranties. — Steve Bliss, BuildingAdvisor.com.
Related Links: Warranties and Dispute Resolution in contracts.
New Home Defects: Holding Your Builder Responsible by the Nolo Press.
New Home Warranties by the Federal Trade Commission.