Top 5 Construction Defects Claims – and how to avoid them

January/February 2011

Take a look at what tops CAHB’s legislative agenda, and you’ll see construction defects right up there, year after year after year. If that’s the case, and if there areways to prevent claims against builders, why do builders continue to fend off lawsuits?

Obviously, if the answers were that easy, there’d be no need for so much work at the capitol — and plaintiff’s attorneys would thankfully fade into the background. The thing is, it is easy to prevent construction defects claims; it’s just not cheap. And there’s the rub, especially these days. Ed Fronapfel owns SBSA, Inc., a company that specializes in litigation support for construction defects claims for both builders and plaintiffs and whose goal is to minimize the potential for engineering and construction defects before and during construction. Since 1999, he’s been providing construction and engineering compliance, repair and rehabilitation and analysis services for claims and disputes; SBSA itself was formed last January.

An adjunct faculty member of the University of Denver’s Burns School of Construction and Real Estate Management,Fronapfel is a civil engineer, and is certified as a Level 2 infrared thermographer, third-party EIFS inspector, forensic claims consultant and a board-certified building inspection engineer. Fronapfel is an expert witness and has testified in hundreds ofcases on both sides of construction defects claims. According to Fronapfel, most claims are preventable; builders and developers need to be more diligent about a variety of items, to ensure a home is solid and safe — and claim free. Five common construction defects provide for most of his business these days. He describes each, and how these defects can be prevented.

Post-Tension Floors

“Post-tension floors are probably the highest number of homes we’re looking at both for home owners’ associations and single families,” he said. “Over the last five years, it’s been a very big part of my business.”There are two main uses of post tension that rise to the level that an owner would be dissatisfied with the performance “First is the inherent design characteristic, which it will move on the soil it sits on. If it’s a slab on grade, design and construction need to take in account that very fact. So the places we see claims on the post tension is the structural damage to the cosmetic finishes to the drywall, windows, doors, veneers — the visual, structural damage.”

The second piece to that is the patios. “These patios are exposed to weather, which were part of the post-tension system. Inherent in the post-tension design is what we call edge curl, where the edges are designed. “When we try to balance a load, we assume the edges move upward. And this is true of both the slab-on-grade post tension and of suspended post tensions of high rises in Denver. So as that slab edge comes up, it reverses the positive flow of drainage and directs it instead of out to the lawn, in to the unit.”

Best practices to avoid a lawsuit

From a prevention standpoint, consider using an increased slope, which will help address problems with upward movement.Or, preferably, don’t tie the foundation and patio together. There’s a final piece to post-tension floors: reported leaks that occur at door thresholds. “To minimize the potential for water to get in there, install a dap, which allows me to waterproof my building much more effectively than if I cast just a flat slab that goes into my unit. If I have a dap — that small step, at least I have some means of protection to the inside of my house.”

And while dap is nothing new to builders, Fronapfel said, “The argument in the court room is, ‘That’s not what we do here.’ There are a number of builders that do daps and have for a long time. It does result in one additional form member, because they have to form a vertical edge in the middle, where the form meets the wall. It does result in more construction cost, but a much less cost than dealing with upset home owners.”

Noise

Fronapfel explained that when done right, homes are designed for sound; when not done right, the owner complaint is noise. The code minimum is the laboratory design value of a rating of STC 50. After a building is constructed, it’s field tested and if it tests at a 45 or better, it is considered a “pass.” In his view, though, “if I achieve a 45, I probably got a D- on my exam; 50 in the code is related to the lowest class of housing, the minimum standard. We should always strive to do better.” By way of example, he explained that if you were living in a college dorm room or apartment, a 50 may be acceptable to you. “If you are living in a luxurious or better-than-average condominium — and it’s sold to you as quiet, luxurious — you should probably be designing and building to 60, maybe as high as 70.”

He added that again, it’s a cost factor for developers and builders. “But that’s where our construction and design MUST be tied to the marketing of the property,” Fronapfel said. “In the last five years, it has been in almost everyreport we’ve written. As we increase the density of the sites, are putting more people on top of more people. So it’s not surprising that we’re seeing an increase in these claims, because we densified our construction.”
Some of the trials he’s testified in had marketing literature that extols quiet, luxurious downtown living in an historic building — with single pane windows. “It’s not quiet living,” he said. “You will hear your neighbors and everything your neighbors do. [These sound issues] are very difficult and expensive to repair.”

Achieving a STC of 65 will cost more: perhaps $10 or more a square foot for the wall, and floor space will be lost, due to the thicker wall. If you want to cut corners and market a home as a higher STC, and you haven’t designed the house that way, be aware that it could come back to bite you in the form of a lawsuit.

How to prevent a defect

Make sure your architect and engineer design your sound up front, to avoid risk of exposure to a claim. Beyond that, be honest in your marketing literature and train your sales force well on how to sell the product you offer to buyers. “If I’m selling condos in Vail, I better be designing to the top of the standards,” Fronapfel said. “If I’m selling entry-level condominiums at the minimum standard in southeast Aurora, I best make my marketing material very clear. My sales people also need to very much understand what it is I’m selling.”

Basement Floor Over Excavation

Fronapfel is seeing two failure modes with basement slabs on over excavation and footings. One is vertical, or upward, where it did not buffer the rise of the expansive soils. “Over excavation for buffering reduces the potential uplift that was there, but does not prevent it,” he noted.

The other is the settlement, where the backfill, instead of rising upward, falls downward. “We’re hoping the earth work guy got it right,” he said. “For cost savings, we’re not importing good soil; we’re trying to remix the soil we had and put it back with some consistency. So if I’ve chosen the slab on grade in footings, and I’m wrong about my over excavation soils, that’s where my warranty comes in and they are very expensive repairs.”

Over excavation findings are inconsistent, he observed. Where one lot may need a structural floor in piers, the lot nextto it may need spread footings. With one lot testing like it was high swell and the other a low swell, Fronapfel said, “I always laugh, because that means the civil engineer knew exactly where to draw the property line, so that all the bad soils were on lot A and all the good soils were on lot B. And we still do only one test, so we’re still guessing at the end result. We’re seeing the same damage that I looked at when I started doing this in the mid-‘90s. We’re seeing those same claims back.”

So builders then went to structural floors, with slabs on grade and shallow piers. And things moved. After a lot of debate, “we went to deeper piers and structural floors to avoid that. Then, because nobody moisture controlled the structural floors, they started to rot,” Fronapfel said.“The lateral loads pushed them inward. There were lots of failures and it wasn’t because it was a bad idea; it was because of bad design and construction of the idea.”

From there, the idea was to replace bad soil in the zone of activity. “Since we can’t come to an agreement on the zone of activity, we see four-foot over excavation, we see ten feet, we see 18 feet, depending on which engineer you hire. Even after I do the over excavation, I have to retest those soils and see if I got it right. So after I’ve done all this mass earth work, I have to bring the engineer back and check again, to do my final designs.

How to avoid an over excavation defect

“Builders should demand from the owner or developer a very thorough soils investigation before the design of the home,” Fronapfel said. That means that after the over excavation is done, the engineer has to come back and retest everything.

The design of the home can then be based on that testing. “That testing needs to go to deep enough depths that we know what we’re sitting on,” Fronapfel said. “I’ll see a soils test at nine feet, then I’ll see a foundation design based on that. Well, if my basement is ten feet deep, the soil that was tested is not even there anymore. So I want to be sure the depth of my test is in fact where my slab will be, where my footing will be — and even deeper, to know how the soils below the building will behave. So if the developer chooses to not want to pay a lot for that test, the builder’s risks go up substantially.”

He added, “And you could say, ‘Well, what would a builder do?’ If I open a soils report and I see the test was at nine feet and my hole for my basement is at ten feet, I wouldn’t put the house there. I’d make them retest. It’s the diligence of the builder to inform the owner of an adequate soils test. I’m not saying he’s questioning the engineer’s testing. I’m saying he’s questioning the engineer’s extent of testing. We’re not asking him to play engineer, but we are asking him to say, ‘If I’m drilling to 40 feet, do I know what’s down there?’”

While most of his over excavation work comes through warranty claims, Fronapfel said he’s seeing a rise in single family lawsuits in this arena. Whether an entire foundation has been ripped up or partial fixes have been made, he said, “We’ve had to go back and retest the soil every time, because the original test was not adequate.”

Horizontal Water Proofing

Defects in horizontal water proofing are found most often in the high-rise and custom home markets. The industry standard has been to put down an EDPM membrane, then place a concrete walking surface on that. The membrane has to be vertically tied into everything around it; coordinating the trades and detailing becomes very important to avoid having to go back later with a jack hammer.

Fronapfel said when he goes to court on this claim, “the argument is, ‘Well, we’ve always done it that way.’ And I say,‘Thank you, because you keep my company very busy.’ It’s always easy to be an adversary of the truth. But the simple fact is that rubber membrane is protecting the space below balcony, acting as a roof. And it has to do that the entire time before I replace it. If I make it difficult and it leaks, it is a huge cost burden to go find that leak and repair it.”

Best practices to avoid a defect

In Fronapfel’s view, it’s simple: Don’t put concrete on a custom home’s EDPM membrane. He suggests using a pedestal paper system, where raised concrete is placed on shoes, creating an air space between the rubber membraneand concrete surface. “When it leaks, I just have to take up the concrete pavers,” he said. “I just lift them out with my hands, find the leak, patch the roof and put the paver back.”

With underground parking garages in resort towns such as Breckenridge, Vail and Aspen, which are loaded on the top with landscaping — and a membrane that may only last 20 years — if it leaks, “it’s a huge cost burden to go find that leak and repair it,” he said. To prevent such a problem, Fronapfel expects a very thorough, robust design from the architect or engineer who designed it.

“I don’t want to save any money here,” he said. “This is a critical element of these buildings. For example, I’m selling to an HOA and I’m looking at the reserve study and I tell the HOA that these membranes are warranted for 20 years. If I have a million dollars of overburden on my parking deck to replace that membrane, I have to remove all of my materials on top of it. So the HOA’s reserve account would have to be fully funded to make that happen. Very, very expensive repairs.”

His suggestion to prevent that is to have a very thorough quality assurance program up front, which is usually paid for by the owner selling the property, typically at a fee of approximately .5 to 1.5 percent of the development fees. “Our developers don’t want to pay up front,” Fronapfel said. “They don’t want to have that burden. Again, they say, ‘We’ve done it this way for 30 years. Why would we change now?’ We need to get them to change.”

Before you bury the membrane, review the plans. “Ensure the owner engaged the architect, engineer to draw before you construct it, so that those questions can be put on the table to the owner and those designers. That really should be done at a design stage, not a construction stage.”

Windows

The good news is that in the last five years, builders have done a very good job of flashing windows indoors. “The waterproofing is better than it was. We’re using building paper now. We’re paying attention to many details.” Except one — and it’s that big bowl of candy for plaintiff lawyers: Mulled windows. “This is where the product itself is not a product that can perform,” Fronapfel said.

Because factories test single products, and builders like to mull windows together, while the windows themselves are tested, the mull is not. “We are replacing thousands of mulled windows and doors with new product, because we cannot get them to pass the minimum standards of code,” Fronapfel said. “They were never tested in the factory to do so. It’s countless, in terms of how many we’ve replaced.”

Best practices to prevent a window defect

Make sure the actual installed unit has been tested. “The second piece to that is don’t use mulled windows or doors. Instead of sticking the windows together, we would put a structural member between them and have two separate windows,” Fronapfel said. “Of course, then the architect says, ‘Well, my custom home guy wants a really big window. He doesn’t want structural systems between them.’ And again, it comes back to the only thing I’m going to install is something that’s actually been tested.” And if some manufacturers won’t test their products, companies like SBSA will, as part of the quality assurance program. He’s currently in trial with a manufacturer that was supposed to provide its own specifications and conformance. “So when we test, we test to see if the contractor’s installation failed or if the product failed,” he said. “And when the product fails, the manufacturer comes totrial with us — not happily, but rightfully. I think they should be there with us.”

Builder Basics

According to Fronapfel, there are some basics every builder should adhere to, regardless of his or her experience level.

  1. Water must drain away from the structure. “Whatever I build, always direct water away. And that goes from the roof all the way to the foundation. If at any point water is directed into the structure, I am wrong.”
  2. “We have a lot of builders say, ‘Ed, the civil engineer’s plan showed negative grade.’ And I say, ‘Yes they do and you knew better.’ So ask the question and don’t build it that way. Because if you build it knowing it did not meet the minimum standards, you’re the one on the hook.”
  3. “There’s common sense to structure. When the building moves, how does it move? Where does the load go? If there’s snow sitting on my roof and I look at the weight, what resists that weight? And all the way down to the footing, there better be something there. That would be true of wind load, as well.”

“Most builders have common sense. When they don’t exercise their right to ask a question and correct it before they build it, that’s where they get hit. And they really need to be diligent and thorough.”

He added that he does get asked on the stand whether a builder should have just walked away. He answers yes, “Because by doing what he did, he’s the one at fault. And nobody, especially now, wants to walk away from a job. So when a developer limits our fees, it’s a tough, tough day.” His two biggest pieces of advice to builders? “Know your client.” And the second? “Don’t build outside your expertise. If I’m doing water proofing, I should be training in waterproofing. I shouldn’t just open a bucket and go for it.”

At a glance: Construction Defect Complaint and Remedy

Post-Tension Floors

 

Design

  • Review design before construction
  • Understand post-tension complexity:
  • The black box does not consider deep wetting
  • The edge movement and center movement do not reverse
  • Ensure structural and architectural details include provisions for movement.

Patio extension

  • Abandon use of slab that serves interior and exterior
  • The edges will tilt
  • Can a system that will allow removal and replacement be used to deal with movement?

Door threshhold leaks

  • Install daps at threshholds

Noise

  • Ensure marketing literature and sales force accurately represents the property you’re selling
  • Ensure your design meets the requirements of your property, not just code.
  • Ensure structural, fire and sound are all detailed in the wall and between designers

Basement Over Excavation

  • Ensure soils report reflects actual depth of basement floor
  • Retest soil after over excavation has been done
  • Ensure that you understand over excavation is not prevention to issues, simply a buffer to lower the effects, you likely will still experience movement. How much can you tolerate?

Horizontal Water Proofing

  • Don’t put concrete on EDPM membrane
  • Get thorough, robust design from architect, engineer before building
  • Consider drainage path, and consider maintenance
  • Thorough quality assurance on project up front, before construction begins
  • Ensure your sub trades that have to interface, understand the needs and the compatibility, as a GC make sure that they are coordinated to provide laps and seals

Windows

  • Ensure the installed unit has been tested
  • Don’t use mulled windows or doors
  • If manufacturer won’t test product, get it tested through quality assurance program