Homebuyer / Legal Advice

[MickMcGeough]

First off, yes I know I need to speak to my lawyer and will do so Monday but I'm hoping some CPers might share any similar experiences with me.

Just bought a renovated condo from a development company. Before the offer, I noticed it had an extremely loud floor in the master bedroom of the upper floor. It's not a new building and I don't mind a few creaks and groans; but this was beyond that. You could feel the floor moving beneath your feet; it appeared not to be attached to the floor joists at all. The seller had told my real estate agent to inform us that the joists would be tightened before moving in, and to include it in the offer to purchase.

My real estate agent added in the "terms of sale" in my offer to purchase contract that read "the seller to tighten floor joists before closing". This was accepted.

On the date of possession, the master bedroom floor had the same problems as before the offer. I contacted the development company and they informed me that their contractor had tightened the floor joists as best he could, and that they'd done all they could do.

What is the development company's legal obligation here? I find it hard to believe they only have to "do their best" and that it's my problem if their best doesn't happen to be enough. Are they absolved of responsibility based on the wording of the condition being "tighten floor joists" instead of "eliminate floor noise & motion"?

[tkflames]

I am not the most educated person on the subject, but in order for a deal with subjects (conditions) to close, don't you need to waive said subject. In other words, wouldn't you have either done a walkthrough to sign off on this condition or just accepted it otherwise. Lawyers?

[MickMcGeough]

Also, I could not hold money back without canceling the sale. The seller's trust letter said they would not entertain any holdbacks. My real estate agent told me this was common and not to be concerned about it.

Is the real estate agent screwing me? I'm wondering about the ambiguous wording of the condition in the offer to purchase plus telling me not to worry about not being able to hold money back at closing.

[ruddstud]

Once the money is transferred and you have done your walk through its all over for you. Once you removed the conditions after your walkthrough you don't have a leg to stand on...... sorry...

[Mike F]

This isn't going to help, but...

If your contract simply said "tighten floor joists," that's all they're obligated to do. If they tightened them and it didn't help the problem, well, they did what was asked.

The contract should have made removing the creaking from the floor as a condition -- like I said, no consolation, but that's your answer, IMO.

You ca get your lawyer to write an angry letter or 2 to try to get some movement, but it's an up hill battle for sure.

[MickMcGeough]

To clarify, the tightening of the joists was a "term of sale". I never signed anything regarding this. I haven't signed anything since a week before the walkthrough.

[Kjesse]

If the developer said that the creaky floor was caused by the floor not being properly attached the floor joists, and so in the contract it was written "tighten floor joists" as being the fix, that's good enough. It doesn't have to be a lawyerly crafted clause to mean something. Especially on those contracts, there's not a lot of room to write the conditions in and judge would recognize that.

"Tighten" isn't the right word, but you have enough written in there that it should cover you.

Closing was fine. Its a hard call whether to close or not, and you're not going to get punished in court for making those quick, often pressured decisions.

If you have "Alberta New Home Warranty" coverage I feel sorry for you, you're about to go through a very ineffective process.

Talk to your lawyer on Monday. If you have specific questions in the mean time I'm sure I or others on the board can help.

[DOK]

It sounds like it could be more of an emotional plea than a legal one. Yes, legally, sounds like they have done their end, tightened the joists, as specified. Now, if you were to go to them and talk to them, explain the situation, they may come back again and try to help out. As you said, they told you, "they did their best", a nice plea for help could go a long way.

I bought a townhome from a developer years back and they did some interesting things in the sale, let me tell you. They installed the door to the closet too close to the hangers, so it wouldn't close properly, installed the light in the master room in the closet. Yes, they did what they specified, but it was obviously not done correctly. They came in and changed it when we both took a look and agreed it was unacceptable. If you have them in with you, and it is that bad, I'm sure they will do something to try to help out. That's hoping people are reasonable, but most are, if you prod enough, I find.

Did you do paperwork for your walkthrough? Both the seller and the purchaser need to be there and they should both have a copy of a walkthrough checklist that gets signed by each person. Did you have this done?

Another small part to this is talking to the condo board. If they are getting issues like this coming up from many owners, a board may help to alleviate issues like this. The board right now probably consists of the developers, but it might not. 52% (I think) of the units must be SOLD to owners, not occupied, to trigger the condo board control to the current majority owners, being you. Unless they own the majority, in which case they are the condo board. I'm not sure I want to get into this, but the framing of the house might be in condo board territory. Depending on how specifically the condo docs are written, generally, an owner will own the inside walls and everything between. I had an instance where the docs said I owned six inches within each wall and everything in between. Which meant I was on the hook for any insulation issues. It's such a painful technicality, but if that's the case with you, the condo board is 100% responsible for the maintenance and upkeep of such things. Again, depends how the documents are written. If the condo board is responsible, then it's them you have to help you, along with the condo management company. This is where you pay your fees to and this is where they use those fees to help you. I was also the president of the condo board and went through a ton of pains with our developers and the such. Don't know if this helps, but I have a long history with developers, and condos I could go on and on!

[onetwo_threefour]

It's doubtful that this would have been written as a 'condition' and even if it was, a court would likely interpret it as a term which would not give you the right to refuse to close but only to sue for damages after a breach. It is not likely a serious enough issue to be construed as a condition unless it creates a structural risk. If it is only a term, there is no need to waive or satisfy it in order to close the deal.

In order to sue though, you can't be in breach, meaning that you need to pay for the property before pursuing compensation.

New Home Warranty does not likely apply since it is a renovation, so you need to deal with the developer directly. (At least I've never run into a condo reno project with ANHW coverage)

Developers' lawyers will often take the 'no holdbacks' position, and unless you wrote holdbacks into your contract at the outset, your lawyer can't force the developer to accept holdbacks at closing. Having said that, in most cases Realtors don't write holdbacks into contracts because it makes Sellers less likely to accept an offer. I don't think it's a bad idea for holdbacks to be written into these renovation deals precisely because there is no New Home Warranty coverage. It's kind of an issue of 20/20 hindsight in some respects though, and there's no guarantee that the developer would have agreed to a holdback.

I would say that the advice you're being given so far by your Realtor and lawyer does not seem bad, and I do think you have an uphill battle because of the wording of the term. It's possible that your Realtor may have some liability to you for not addressing your concerns adequately in phrasing the term, but you will really need a proper legal opinion to go any farther. I'm only commenting based on the original post in this thread and there are many factors that could affect my advice to you. If the builder did go and 'tighten the joists' they've probably satisfied their obligations under a term worded in that way. The fact that you may have discussed the movement in the floor would likely be held to be irrelevant since all terms in a contract for the sale of land must be in writing and the Court will generally not allow evidence as to a parties verbal discussions of the terms of the contract as evidence. I don't think a term that says "tighten floor joists" will be interpreted as "make floor silent" especially since there was no time pressure on the Realtor when writing that term.

[MickMcGeough]

Thanks for all the opinions and advice everyone! This place is great. I've spoken to my lawyer (and a couple others).

One believes that the seller's instructions to his realtor (that the floor would be repaired before close) indicate that his interpretation of the contract was the same as mine, that the floor movement/noise be eliminated, and that a judge would probably see that.

The other two say that as the contract is the only concrete, legally binding factor here, it's unlikely a judge would rule in my favor based on my unqualified assessment of the work done.

I plan to hire out the repair either way. All the lawyers I've spoken to agree that if a qualified carpenter successfully repairs the floor by performing the repair as originally requested in the offer to purchase contract, I'd have a very strong case in small claims court. Makes sense to me.

I plan to take that course of action and have a couple of questions about that.

1) I have a good friend who is an independent carpentry contractor. He's qualified and would of course give me a good rate. Would his assessment of the seller's work be worth less in court than a carpenter with whom I don't have a personal relationship?

2) Anything else I should know about using a carpenter as a witness in small claims court?

Thanks again everyone!

[troutman]

Originally Posted by MickMcGeough

2) Anything else I should know about using a carpenter as a witness in small claims court?

Is your carpenter willing to miss a day's wages to be a witness at your trial?

[MickMcGeough]

Originally Posted by troutman

Is your carpenter willing to miss a day's wages to be a witness at your trial?

Great point. Is something in writing admissible, or would they have to be present for cross-examination?

[Winsor_Pilates]

I agree 100% with 1,2,3,4.

I think your realtor was trying to help, but should have done a better job with the wording. Seems more like a mistake on their part, then an attempt to screw.
I would go the route of trying to talk to them and plea your case, as opposed to legal action, but I'm not a lawyer, so maybe there is a good case here.

Still not clear about your walkthrough? Did you add this deficiency on your report?

[4X4]

Tighten floor joists... What does that mean? That's so ambiguous that I bet they did exactly nothing and said that they did everything they could.

So let me get this straight. When you're in the master bedroom, walking on the floor, it literally feels like it's not attached to the joists? If that's the case, then the obvious solution is to get the floor screwed. If you're unfamiliar with that term, it means to add more screws to the subfloor to better affix it to the joists supporting it.

Typically, when a framer builds a wood frame structure, he lays the subfloor and then pops maybe 8 nails or screws into each piece of 4x8 plywood that your subfloor is made out of, to put it in place. After the house is built and enclosed, he (or a subcontractor) comes back and "screws the floors" - puts in a f'load more screws with collars on them to firmly keep the plywood flat on the joists and reduce future creaks from developing.

This has obviously not been done in your master bedroom. And of all the places...

So the next question is what kind of flooring do you have? Carpet? Hardwood? Hopefully carpet. If so, tearing it up, screwing the floor and putting the carpet back down is a job that can be done by lunchtime.


But just for the heck of it, I want to further explore this whole idea of "tightening the joists". What exactly did they claim to do during this "joist tightening" session?

[MickMcGeough]

There was no "walkthrough report". We had a walkthrough with our realtor and voiced a number of concerns to her, she said to have our lawyer take the list of concerns and forward it to the seller. We preferred to handle it directly and the seller has mostly cooperated.

One issue was new damage to our cupboards. We've been offered fair monetary compensation for this, provided we consider the floor issue "closed" if we accept.

The bedroom is carpeted. The seller's contractor says he tried to screw down the floor but couldn't get it tight enough to have any effect on the movement or noise.

[4X4]

Well then that guy should stop using a friggin hand screwdriver and get a screwgun. I mean, unless the framer used microlam beams as joists, there's no reason why a screw wont penetrate plywood and go into a joist. Not screwing the floor is skipping a huge step in quality. It's an industry norm. Even the very cheapest track homes in new suburbs get their floors screwed.

[Jedi Ninja]

What sort of renos did the contractor do to the house? Did they remove any walls on the main floor? Are you sure that it is just the plywood moving and that the joists are moving (deflecting) as well? Did they pull any permits for the work they did? You can find this out yourself by going to http://calgary.ca/myproperty , plugging in your address, and checking the section labelled "Building Permits (active or issued in the last 3 years)"

[Kjesse]

Originally Posted by 4X4

Tighten floor joists... What does that mean?
But just for the heck of it, I want to further explore this whole idea of "tightening the joists". What exactly did they claim to do during this "joist tightening" session?

Thinking about it more, and keeping in mind what you've said, if it was stated by the developer as being needed to fix the noisy floor, it had to have meant "tighten the floor joists to the subfloor". There's really no other interpretation, as I don't think anyone would suggest it meant they were going to torque each end of each joist away from the center.

One thing to know about small claims court: Anything can happen. Its important to not rely too much on technical arguments while still respecting the law. Spend more time showing you deserve to win, then secondly, focus on the technical part. I don't disagree with onetwo_threefour's analysis, I just don't think at small claims a judge will look at it in those terms. It is the intent of what was agreed to that is more important than the strict form of the wording of the transaction, especially where the wording is somewhat ambiguous and used by the developer to get you to agree to buy.

I call a victory to you, 8 times out of 10.

[Bagor]

Originally Posted by Delgar

it had to have meant "tighten the floor joists to the subfloor". There's really no other interpretation,

Yup

Originally Posted by MickMcGeough

The bedroom is carpeted. The seller's contractor says he tried to screw down the floor but couldn't get it tight enough to have any effect on the movement or noise.

Just me, but I smell BS from the contractor.

[onetwo_threefour]

Originally Posted by Delgar

Thinking about it more, and keeping in mind what you've said, if it was stated by the developer as being needed to fix the noisy floor, it had to have meant "tighten the floor joists to the subfloor". There's really no other interpretation, as I don't think anyone would suggest it meant they were going to torque each end of each joist away from the center.

One thing to know about small claims court: Anything can happen. Its important to not rely too much on technical arguments while still respecting the law. Spend more time showing you deserve to win, then secondly, focus on the technical part. I don't disagree with onetwo_threefour's analysis, I just don't think at small claims a judge will look at it in those terms. It is the intent of what was agreed to that is more important than the strict form of the wording of the transaction, especially where the wording is somewhat ambiguous and used by the developer to get you to agree to buy.

I call a victory to you, 8 times out of 10.

I hope you're right. I do agree that it is the most obvious interpretation that the joists should be 'tightened' to the sub-floor but without knowing more about what the contractor did or did not do, I would be hesitant to form an opinion as to Mick's chances. Small-claims is definitely a wildcard for stuff like this and it mame that you have a better chance of success there for sure.