Expert: Joe Turner - 10/18/2008

Question
We live in our nearly 5 yr. old custom built home. Since year #1 we have had residual problems concerning cracked tiles, grout, cement floor cracks, baseboard molding pulling away from the drywall, felt expansion joints around the concrete slab have buckled(approx. 2" raised in several areas)& split apart around the entire house. Cracks around windows, large cracks separating the entire garage floor from the stem wall, cabinets off balance, drywall splits in a few ceilings, more hollow sounds under new tiles, windows not latching, etc.

49 of our neighbors had a different builder who spent 5.5 million to correct their drainage issues, which we were informed last year that we have expansive soil.  Our builder won't get involved, saying to sue our 2-10 warranty co.  We filed a claim with them & they informed us that our only load bearing element is the foundation, which they believe to be not structurally defective & additional investigation is not necessary at this time.

We have had 2 manometer surveys done showing a heave in the floors.

We have spoken to an attorney who would want to do a mass action, but 95% of our neighbors do not want to get involved.  Should we:
1.  retain an attorney on our own?
2.  contact our state's insurance regulators?
3.  contact our builder in writing?

Thank you for any information you pass along to us.

Answer
This is all too common. The expansive soils should have been stabilized by the builder. There are a variety of ways to do this prior to construction but not many ways to do it when the home has been completed. Most, if not all, of your problems could be due to expansive soils and the builder's lack of proper preparedness and attention to detail.
You should write a letter to your builder, list the issues and ask for a meeting to solve each issue. Do not threaten but do put a time limit for scheduling the meeting.
If you get no response or a poor response, get yourself a lawyer who understands construction defect litigation (CDL). Ask for proof that the firm is knowledgeable in CDL. Keep shopping until you find a lawyer who truly knows this. You might contact The Miller Law Firm in San Francisco for a referral of a lawyer in your state.
Please know that when you start this you are admitting that your home is defective. In most states you must declare that when you sell the home. Of course, if all the issues have been addressed you can add a statement to that effect on your Seller's Disclosure form and you will be OK.
JT