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Damien Bosco
Damien Bosco, Attorney
Category: Real Estate Law
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We contracted with a local builder to build us a new home.

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We contracted with a local builder to build us a new home. The builder's subcontractor did not properly grade the back yard, which has resulted in pooling of water. This was determined by the City when they performed their "as-built survey", however this was never communicated to me until I demanded to see all permit applications. I recently obtained an elevation map from that inspection, which clearly states there is insufficient slope, and the emergency overflow needs to be within the easement on the lot line.

The builder acknowledges the grading is incorrect and has proposed that the yard be re-graded. However, he told me that I will be responsible for the cost of re-sodding and re-installing the sprinkler system. I believe these are consequential damages resulting from curing the original breach of contract, and that the builder, and/or his subcontractor should be obligated for this cost. Please advise.

Additionally, the builder's proposed solution would move our low spot to 10 feet from the property line. This is technically within the 10 foot easement for utilities and drainage, but it is much preferred to have the low spot right on the property line to maximize our usable space.

To summarize outstanding questions...
1) Should the builder, who has acknowledged the breach, and proposed a cure, be responsible for replacing the sod and sprinkler system, in addition to re-grading of the yard?
2) What rights does the homeowner have regarding the property within the easement? Can we insist that the low spot be moved to be right on the property line, instead of 10 feet from the property line?
3) Can the City be liable for signing off on permits when their inspection found the work to be incomplete?
4) What is the dollar amount minimum / maximum for claims raised in small claims court in Minnesota?

Hi and welcome! My name is XXXXX XXXXX I will be assisting you. I am happy to help.


I agree with your interpretation of the consequential damages. The contractor and subcontractor could be held liable. Consequential damages, otherwise known as special damages, are damages you can prove occurred because of the failure of one party to meet a contractual obligation. They go beyond the contract itself and into the actions garnished from the failure to fulfill. The contractor acknowledged the breach; and, but for the breach, there would not have been anything wrong with the sprinkler system.


I also agree that the preferred low spot should be used. Although easements may restrict the rights of landowners to erect structures, etc., you should be able to negotiate something that is in the best interest of the land itself (in other words, if your proposal would actually help the situation; which it does).


I agree that the city would be liable if the city incorrectly provided the permits. In other words, if the permits were improperly issued; the city could be held responsible if the work done incorrectly followed what an incorrectly issued permits said.


In Minnesota, the Conciliation Court is also known as "small claims" court. General claims of $10,000 or less can be filed in Conciliation Court. Note that once you file a claim, you cannot later file another claim for more money related to the same event(s).


I hope this response answers your questions. If you need clarification or follow up, let me know. Best regards, Damien

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