I bought a first floor condo unit in a 2-family house. Noise was a known issue before the house was renovated, and I contracted with the developer to insulate the ceiling (contract called for "dense wool insulation, and covered by a layer of fiberboard and one of sheetrock. The developer, instead, put in foam insulation and one layer of sheetrock. The noise between units is very prominent and unbearable at times. The foam seems to exacerbate the problem. Do I have legal recourse under 93A?
Country relating to Question: United StatesState (if USA): MassachusettsWhat have you tried so far?: I am planning to have a meeting with the developer to discuss, but don't want to tip my hand prematurely. The estimate to fix the problem is ~22K, and the upstairs tenants are cooperative.
Hello and welcome.
I am sorry to hear of your difficult situation. My goal is to provide you with excellent service. First, I have some questions for you so I can determine what information to provide you.
Do you know why the contractor did not utilize the materials called for under the contract? Do you know how much it will cost to install the proper materials?
I believe the contractor may have told him the spray foam was a "better" way to insulate. But they did not consult me about this, nor did the developer amend the contract. (He just did the work differently than what we agreed to.)
We have an estimate that calls for ripping out my ceilings, putting in the wool insulation over the foam, then installing new ceilings on noise-isolating clips. This will all cost around $21-23K.
Hello again, Andrea.This would typically involve a breach of contract for which you could pursue damages against the contract since they deviated from the agreement you entered into. It would not likely constitute a deceptive trade practice under Chapter 93A though unless there was an intent to deceive you. If the contractor was mistaken that the foam would be better than the materials agreed, that would not normally involve a violation of Chapter 93A although there would be a breach of contract claim involved since they did not use the materials agreed to.You would normally be entitled to the reasonable cost to install the materials you had originally agreed to. If the contractor will not agree to a settlement of your claim, then a complaint could be filed with the BBB or the local or state consumer protection agency.Here is a link that provides guidance on pursuing a complaint against a contract with the local or state consumer protection agency:http://www.mass.gov/ocabr/consumer/home-improvement-contract/consumer-guide-to-home-improvement-contractor.html
I hope this helps clarify the situation for you.
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The web site you referred me to specifically talks about Contractors. Does this also apply to a developer, ie, the person who hired the contractor? It seems that if my developer was mislead by the his contractor to put in the wrong material, then he may himself have a claim against the contractor.
Also, you state that I would normally be entitled to "...the reasonable cost to install the materials you had originally agreed to."
Does this mean the cost of doing the work when the ceilings were already ripped out, or the cost of now remediating because he did it wrong the first time? (It costs more to do the work now than it would have if he had done it correctly in the first place.)
Hello again, Andrea.Yes, the contractor could have a claim against the developer for damages if the developer intentionally misled him. The damages you would normally be entitled to include the cost of remediation, even if it cost more than originally agreed because the ceilings need to be ripped out again. The contractor could seek indemnification of your damages against the developer though if the developer misled him as you seem to believe is what occurred.
15 years legal experience including consumer protection law.
Thank you very much for your help. We will set up a meeting with the developer to discuss the situation. Hopefully he will respond in our favor.
You are very welcome, Andrea. Thank you much for the positive rating. I sure hope you are able to resolve this promptly with the developer and contractor. Good luck to you.
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