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Merst 06-11-2010 09:13 PM

Need advice; GC's ignorance of code to cost us extra?
 
As this is my first post here, if I'm in the wrong part of the forum just point me in the right direction. This is a long first post, but I'll try to explain as concisely as possible.

My main question is if a homeowner gets an estimate and hires a general contractor to do a job that doesn't pass inspection because the GC simply didn't know the proper code, is it OK for the homeowner to be charged the additional expense required to meet code?

We recently hired a contractor to finish out our attic space (framing, rough in for hvac and electrical, insulation & drywall). We have made every effort to do things by the book thus far, from getting three estimates from licensed & bonded contractors, to negotiating the scope of work (leaving out finishing work that we can do ourselves), to making sure they pulled permits and provided a written contract before starting the job.

The easiest access to this new space would be through a linen closet in the 2nd story hallway, by converting it into a short stairwell (24" rise). This has now become the only source of frustration in an otherwise smooth process. The closet was only 28" wide. Every contractor we had bid on the project mentioned that it was inconveniently narrow, but none of them EVER mentioned it would not meet city code (our city follows 2006 IRC codes which require all new stairwells to be 36" wide). We're usually pretty thorough researchers on a project like this, but missed this detail. Nonetheless, in my view that's what we're paying a GC for - to know more than the homeowner.

Needless to say, we did not pass the rough-in inspection and need to widen the stairwell. Due to HVAC obstacles in that area of the 2nd story/attic, creating the extra space will require rerouting at least one (possibly two) return air vents, and the liklihood of needing to break through the kitchen ceiling and hiding one of the 12" ducts behind a fir down/soffit over one of the cabinets. Obviously this is going to be a considerable cost overrun.

Now, who is responsible for paying for this extra work??? The contractor is giving us a new estimate for the additional work necessary to bring it to code, but in our view the original estimate was misleading since he should have known the code from the outset, and his ignorance should not come at our expense.

Also, we feel our written contract works very much in our favor:

The contractor agrees to furnish all materials, tools, equipment and applicable taxes necessary to complete the General Construction Work for the above referenced project in accordance with industry standards and per the estimate written by ********...

...If any additional work is requested by the home owner, the Contractor will need to submit a change order to the owner. The change order will need to be approved prior to the start of the additional work. The total for this work will be added to the original contract amount....

...All payments are due upon receipt of invoice. We will submit invoices for two progress payments for this project. Fifty percent of the contract amount will be due after all rough in inspections are passed and the remaining balance due upon completion of the scope of work...

It clearly states we don't owe anything until after they pass the rough-in inspections. They haven't. It also states they will perform the work "in accordance to industry standards," and in the case of the stairs they didn't. Also, we haven't "requested additional work," as the contract states - we've simply requested a room that meets current building code.

Please understand we are not unreasonable people, but like everyone else we have a budget. We are willing to pay a little extra out of our pocket but at a certain point there is a pricetag that would've made this project a non-starter from a cost/benefit standpoint.

How should we handle this situation? Our goal is to simply move forward with the project without getting screwed, and continue a functional business relationship with this company through completion (we believe them to be good, well-intending people). We are somewhat concerned that if we push the issue of the contract language that the relationship may sour quickly and we do not look forward to the headache of possible legal action, even if we are in the right.

Opinions/advice? If we are completely off the mark here, let me know.



Scuba_Dave 06-11-2010 10:02 PM

What did the contract state as far as the stairway ?

Merst 06-11-2010 10:15 PM

Quote:

Originally Posted by Scuba_Dave (Post 454869)
What did the contract state as far as the stairway ?

The contract defers to the official scope of work which contains an 8hr labor charge for a general framer "to modify the closet walls and ceiling that will be the entry for the new room upstairs."

Also a line item for "stairway - up to 3' wide".

Just noticed the scope of work also states "all work will be done in a professional like manner and meet or exceed building requirements"

Scuba_Dave 06-11-2010 10:27 PM

I do not know of any area that allows a stairway less then 3' in width
Pre-existing are allowed to remain
Where are you located ?

Did you ask at all about the stairway since others had stated it would be tight ?

Seems like they are on the hook for a stairway up to 36" that meets code
Have you discussed with them that you think the cost was included in the original estimate ?

Daniel Holzman 06-11-2010 10:29 PM

First off, this is a DIY forum, and normally discusses issues related to homeowners performing their own work, not legal matters. You have a contract interpretation issue, which is clearly a legal matter. Therefore, it probably belongs on a legal forum.

That said, it is an interesting problem, and with the understanding that the remainder of this discussion is totally unrelated to normal DIY issues, let me take a crack at this. As an engineer, not an attorney.

In the world of commercial construction, which is where I make my living, a contractor is responsible for building the plans, NOT interpreting code or designing the job. Typically they are furnished what purports to be a complete, accurate, biddable and buildable set of plans, which they then prepare a bid for (not an estimate, but a bid). If the plans turn out to be in violation of code, that is NOT the problem of the contractor, they simply build to the plans, and file for a change order if the engineer or architect changes the plans for any reason, including code violations.

In commercial construction, there is a type of contract known as design/build, where the contractor designs and constructs the facility, at their own risk, and typically for a fixed price. The owner typically furnishes a relatively complete set of specifications, and may furnish partially complete plans, which are then finished by the contractor, who then builds the project.

Most homeowners use design/build without realizing it, as they rarely furnish complete, biddable and buildable plans to a contractor. More commonly, the homeowner does not hire an architect or engineer, rather they instruct the contractor about what they want done using sometimes difficult to follow language, incomplete plans, or occasionally unbuildable plans. The typical homeowner relies upon the expertise of the contractor, but typically does not write down their expectations. I suspect this is the case with you. Your contract with the builder probably does not spell out your expectation that they will design the project in accordance with code, and then build it.

Your contract may not even use the word design, you may simply tell the contractor that you want a room of a certain size built, with staircase access, and leave it to them to figure out how to frame it. In that case, who is the designer? If you wanted the contractor to design the job, they would probably have needed an architect, since by law contractors are typically not permitted to perform design services anywhere in the United States, only an architect or an engineer can do that.

The difficulty is in deciding what is design services. If an electrical contractor decides where to put the panel, and what size wire to run, is that design? Typically contractors do a lot more design than the law allows, whether it be a framing contractor selecting a beam size, or a plumber sizing a furnace, or a GC figuring out how to put in a staircase.

So your situation is pretty difficult to analyze. If you had furnished drawings to the contractor, and the drawings were out of compliance with code, I would say it was your problem. If your contract specific required the contractor to design and build the job in accordance with code, I would say it is his problem. If your contract does not require the contractor to design the job, but simply states that he does not get paid until the project passes inspection, I would say you are somewhere in the middle.

jlhaslip 06-11-2010 11:17 PM

Very good analysis.

Merst 06-12-2010 01:05 AM

Quote:

Originally Posted by Scuba_Dave (Post 454883)
I do not know of any area that allows a stairway less then 3' in width
Pre-existing are allowed to remain
Where are you located ?

Did you ask at all about the stairway since others had stated it would be tight ?

Seems like they are on the hook for a stairway up to 36" that meets code
Have you discussed with them that you think the cost was included in the original estimate ?

AFAIK from my recent research, you are right about no areas allowing a new stairway less than 3' in width. In hindsight I believe this company probably does a lot of jobs without permits; the GC seemed to truly not know the code in this case, which is unbelievable to me. This company has an A+ rating with the BBB. After the project was already underway, the project manager DID acknowledge that we probably wouldn't pass inspection, and seemed OK with dealing with the repurcussions after the fact, including suggesting we sign a waiver of liability (we refused) stating we would only use the room as storage space - wink wink, nudge nudge - so that they could move on with the project, narrow stairwell intact.

The narrow width of the entryway was discussed probably more than any aspect of the project, but only with the focus that the existing door width of 24" would be a nuisance in terms of moving furniture into the room. In fairness to the contractor, we said we were fine with that width, but in fairness to us we were insistent on him pulling a building permit so that the work would be inspected by the city. And IMO if they knew it would be inspected then the original bid should've accounted for what it would cost to meet code.

Merst 06-12-2010 01:18 AM

Quote:

Originally Posted by Daniel Holzman (Post 454885)
First off, this is a DIY forum, and normally discusses issues related to homeowners performing their own work, not legal matters. You have a contract interpretation issue, which is clearly a legal matter. Therefore, it probably belongs on a legal forum.

That said, it is an interesting problem, and with the understanding that the remainder of this discussion is totally unrelated to normal DIY issues, let me take a crack at this. As an engineer, not an attorney...

...So your situation is pretty difficult to analyze. If you had furnished drawings to the contractor, and the drawings were out of compliance with code, I would say it was your problem. If your contract specific required the contractor to design and build the job in accordance with code, I would say it is his problem. If your contract does not require the contractor to design the job, but simply states that he does not get paid until the project passes inspection, I would say you are somewhere in the middle.

I agree that this is probably not the perfect forum for this question, but I thought there would be a good chance of getting some intelligent and informed response in a place full of motivated homeowners. So, thanks for taking a detailed crack at it. :notworthy:

We didn't furnish any drawings to our contractor. We showed him the space we wanted framed out and turned into a heated/cooled room, suggesting where we thought the best access point was located. He did the measurements from where he thought the new walls should be framed, estimated the square footage to be finished, and put together the bid.

kwikfishron 06-12-2010 09:50 AM

Wasn’t there a plan submitted, approved, and a permit issued by the building department?

This issue should have been caught then. That’s what the process is all about.

Merst 06-12-2010 10:22 AM

Quote:

Originally Posted by kwikfishron (Post 455065)
Wasnít there a plan submitted, approved, and a permit issued by the building department?

This issue should have been caught then. Thatís what the process is all about.

I don't think our building dept requires a detailed illustration of work to be done, just a brief description.


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