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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I bought a house brand new built from the ground up last year.

Customer Question

I bought a house brand new built from the ground up last year. I paid for an extra wrapping around the house to protect from water damage and it has a 10 year warranty on it. Well last week I saw water seeping from a foundational crack in my basement and the home liason came out and said it would be taken care of as he had to call the cement company. That was 2 weeks ago have not heard from them yet. So today I get a call from the home liason who was rather upset and said he didnt know how to tell me this but they never put the wrapping on the house. Needless to say the cost of 1600 is included in a 30 year mortgage. I am upset to say the least. Now he said there are a couple of options...one would be to cut me a check for what we paid for or to dig up the foundation and actually put the wrapping on ...hence he said to now dig up all surrounding dirt to get to the foundation and do this would probably cost them a fortune....so here is my claim...I think i should be compensated for there mishap. Do you think I would be unreasonable to ask for the check plus the interest I am paying on it along with a warranty and a few other things that I didnt get when I bought the house, within reason of course. Or should I tell them to get to digging??
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 2 years ago.
It is really up to you. You have a lot of leverage here with the warranty in place and the contractor admitting to failing to provide a service they were supposed to do (most construction defect work is much harder to prove - it usually involves inferior product, or negligent or shoddy construction work).You can negotiate a settlement for yourself that makes you satisfied - having them come out and do it right (dig it out and wrap the house) would give you what you bargained for (if you were in a position where you had to sue them to enforce the contract, this would be called "benefit of the bargain damages").You can certainly ask them for lesser monetary compensation, but more than just the amount you paid at face value (this is a negotiation).One word of caution, with construction defects, make sure that you don't sign a release or settlement that is greater than what you are willing to sign. So for example, if you are settling on the wrap issue, but you are getting the leak fixed in some way, and getting paid, you can sign a settlement to that effect, but you wouldn't want to sign a release that released the contractor from all liability (the type of release that we would normally be talking about after a more comprehensive "construction defect case" where the homeowner hires a construction defect attorney, and an architect and contractor who inspect the house (usually with "destructive testing") and then get compensation for all damages that were identified, the contractor pays for this, but they are then released from any future liability for the home (the homeowner cannot claim that they later found other damages).