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Legalease
Legalease, Lawyer
Category: Legal
Satisfied Customers: 16344
Experience:  15 years exp all aspects of general law
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After installation of a new porcelain tile floor (approx 850

Customer Question

After installation of a new porcelain tile floor (approx 850 sq ft) we found flaws in the tile (approx 40 tiles). The tile company provided replacement tile and allow $3,500 for labor to replace those tiles. Prior to the contractor returning to replace those tiles I found a number of loose tiles. Upon removing the loose tile we then realized a majority of the tiles were loose. We then had a tile expert look at the floor and he advised that the entire floor needs to be removed and redone due to improper installation. The contractor is willing to do the work but feels he is entitled to the $3,500. We feel he is not as the entire floor needs to be redone due to his workmanship. He is willing to purchase the new tile however wants us to purchase it using the $3,500 we received from the tile company. Is he entitled to the $3,500. We are located in upstate New York.
Submitted: 1 year ago.
Category: Legal
Expert:  Legalease replied 1 year ago.

Hello there -

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Can I ask you a few questions on this matter? I actually have a lot of experience in construction law and litigation and I also have a husband who has been in the tile business for about 25 years now and so, if you do not mind I am also bouncing this off of him for his knowledge.

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A. What type of subfloor was/is under the tile ? Is it just plywood or did the contractor put hardi backer board (sometimes called cement board) down before laying the tile? Or did he simply tile over what was there?

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B. Do you have any idea what type of adhesive was used (even a product name)? Your guy may not have used the right adhesive for porcelain tile being laid on whatever type of subfloor that you have.

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C. Did the contractor tell you not to walk on the tiles or put anything at all on the tiles for a certain length of time after installation? If he did give you a time period, did you follow it strictly (a very common argument but a good one is where the contractor instructs the owners and/or occupiers of the house NOT to even let the cat onto the tiles for a certain period of time after completion and so if you took this to court the contractor might try to claim that you did not follow his instructions -- my husband has actually had this issue come up and so he now takes date and time stamp pictures if he sees people on the tile or furniture, etc, before his recommended time period is over -- one couple swore under oath to a judge that they never even looked at the tile and they were very shame faced when my husband pulled out a few pictures of the husband dragging patio furniture across the kitchen tile within an hour of the installation -- so I am sure you understand my meaning?)

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D. Many people claim to be experts because there really are no "tile schools" that they can attend --- much of their knowledge comes from years of experience with these products. I am going to assume that your expert has many years experience and came from a tile company or something like that? You would not believe how many times my husband has heard "well, Joe has worked for home depot for several years and installs tile for them as a subcontractor" (it is common knowledge in the industry that companies like Lowes and Home Depot simply grab the least expensive installers they can find so that the company can make most of the profit off a job like this). When working with such expensive, delicate materials, you need someone from a tile company that has been in business for a while -- it may be a bit more money but the quality of the work is worth it.

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While I do believe that you probably have a breach of contract claim, once you answer these questions I can make a better assessment of whether or not you should offer the prior contractor anything to re-do the job or offer him the chance to do the job as a courtesy or be sued in small claims court for the cost that you will have to pay another tile contractor to come in and install the floor all over again. In court, these are the types of questions that you would be asked also.

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MARY

Customer: replied 1 year ago.
In answer to your questions, first the contractor is agreeing to do the work to correct it. My question is as to weather he is entitled to the $3,500 which we received from the tile company.The subfloor is 3/4" t&g plywood. The contractor then used Schluter Ditra mat. The expert which came was actually Rich Citro, Territory Manager for Schluter Systems with 30+ years experience. The contractor was also present at the time and the finding was that the incorrect size notch trowel was used as well as not enough mortar. He advised that industry standard is that the tile has a minimum of 80% transfer to the back of the tile. Most tiles pulled so far have either none or very little. Mr. Citro's finding was the correct adhesives were used, it was that it was improperly installed and that the entire floor needs to be taken up and redone. This we have in writing.The contractor is willing to do the work, the question is if he is entitled to the $3,500 we received from the tile company to replace the flawed tiles. Those tiles are no longer be replaced due to the flaw, the entire floor has to be replace due to the improper installation. He wants us to purchase the tile using the $3,500 received from the tile company.Estimates for another contractor to do the work would be in the range of $15,000 - $20,000. In New York the maximum you can go to small claims court for is $3,000.
Expert:  Legalease replied 1 year ago.

Hello again --

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I did not mean to offend you with my questions,but I think some important bits might have been left out of the original question that you posted -- so the contractor will do the work whether or not you credit him with the $3500 ? He has agreed to do that ?

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BTW, it sounds like your tile expert is very good at what he does and its too bad that he cannot install the tiles (you also did not mention that the installer was involved in the expert review process -- that is rare and usually these things are much more contentious ) - but all of the questions are valid towards whether or not the contractor tile installer should receive the $3500 and if he chose to walk away and you took him to court (either small claims in a village/town court for $3, 000 to $4,000 depending on location or $5,000 in the nearest Supreme Court small claims session or a larger lawsuit where you sue him in a regular civil lawsuit for the cost to install the entire floor again), the court will ask such questions to determine the relationships between the parties and how the tile was installed, etc. It is a rare occasion where the installer subcontractor is in agreement with another contractor indeed.

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MARY

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Customer: replied 1 year ago.
The tile contractor is willing to due the installation but will not schedule to due the work until we have purchased the tile using the $3,500. He will provide all other installation material and labor.
Expert:  Legalease replied 1 year ago.

Hello again --

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Unfortunately there are no statutes that I can point to that the court can use to make a decision on your behalf or his behalf. This is a breach of contract case where the court will make a decision based upon all of the factors that we have discussed and what the court believes is fair and equitable to all parties in this case. Under the circumstances, where the tile payment was sent to replace the tiles that were defective in and of themselves, there is a decent argument here for the installing contractor that the tiles were bad no matter what and would have had to be reinstalled no matter what so I do believe that a court will side with the contractor in this particular regard and that you should put the funds towards the tile in any event. If he were seeking additional labor money then he might have a more difficult time of it, but because it is being used for the purchase of the tiles, I believe it is reasonable and he has a good chance of winning on this issue.

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Please let me know if you have further questions. THANK YOU.

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MARY