Note: This is the fourth of a five part weekly series covering the subject of roof leaks and what you can do when you get one. The first three articles are focused on preventing construction defects. The last two articles will focus on remediating the effects of a leaky roof including whether or not you may be able to get the architect or contractor to pay for the repairs. (Here’s a hint. The statute of limitations for most school district construction defect claims is 10 years.)
You walk into your half finished high school after a heavy rainfall and notice several inch-deep pools of water in the center of the building. You recall having paid the pay application that covers the roofing system and you recall that it was warranted to be complete. You then notify the contractor and the architect as described in part 3 of this series and they send their men armed with caulk guns to save the day.
Unfortunately the day is not saved because the next time it rains you get the same result - inch-deep puddles of water in the building. All the leading credible experts agree. A new roof should not leak. Do you need an expert to tell you that though? Probably not. But you may need one to tell you how to fix the problem you’ve got. It’s either that or rely on the contractor that installed the roof and tried to fix it with caulk.
And what about those inch deep puddles on the floor. Is your floor flat enough? Sure you can (and should) notify your architect and contractor about the concern, but how will you respond if you are told that every thing is ok. How will you respond if you get mixed messages? Say for example, the architect says it’s the contractor’s fault and the contractor says that it’s the architect’s fault. Some of you are nodding your heads now. Yes. It does happen. So what do you do?
Your main concern is to get the problem fixed right away so that you can avoid compounding the problem by allowing it to continue. Leaky roofing systems do not tend to fix themselves. To achieve that goal you have to grapple with first, finding the expert and then, of course paying for them.
How do you know who the “right” expert is? Call me jaded, but you’re not necessarily always going to want to go with the one recommended by your architect or contractor. Certainly, if these parties offer to pay to get a second opinion by all means take them up on the offer. But if your problem is a leaky roof, chances are, the contractor’s expert is probably going to give an opinion that is weighted more to the side of the contractor. Sure, the architect or contractor\ might say the same thing about your expert, but who cares, so long as your expert understands that they aren’t there to give you anything other than their unbiased opinion so that you can properly and economically remedy the problem.
There are a lot of companies that provide professional consulting services and consulting is really all they do. Sometimes the companies provide both the consulting and design or construction work. Whatever the case, you should not use the company that diagnoses the problem to fix the problem. Some folks might call that a conflict of interest. Certainly, if you ever wind up in a lawsuit, the defendants will. If you are in the midst of the construction project, you wouldn’t really want to bring in another contractor to do the work anyway unless your contractor is refusing to perform under the contract or to repair defects in the workmanship.
So how do you find someone to give you an expert opinion on a construction problem? If at all possible you want to find someone that has worked on school projects before. Therefore, you will want to check with your neighboring superintendents for possible leads. Architects are also excellent sources of information concerning experts in a wide variety of disciplines. Architects often have to rely on such experts themselves. If your problem involves engineering (and I think it is fair to say that all roofing systems do in some manner or another) then you need to find a properly licensed engineer.
You have to check their credentials. Where did they go to school? How long have they been practicing in the field? Do they actually work in the field in which they purport to be an expert or do they sell testimony for a living? Of course, you can never base your selection on price.
Get a good thorough statement from the engineers concerning their qualifications then conduct some interviews with them. Ask them if they’ve ever worked on a project with the members of your construction team. You want to weed out bias, interest, or prejudice on the part of the engineer or professional you are seeking to hire. Additionally, you need to gauge their directness and their ability to communicate with laymen about sometimes complicated problems. You don’t want or need a contractor or architect engineer that gets wishy washy if they have to render an opinion that might be very costly to the architect or engineer. Again, your looking for an expert that can diagnose the problem without becoming emotionally involved in the consequences.
Remember, whomever you hire will have to be able to communicate with you, your board, and possibly some day, a jury. Your focus needs to be on expertise, but part of that will require you to give at least some consideration to their ability to communicate.
If you are using the industry standard form agreements or something similar, there are provisions that will address your duties to give notice concerning the concern you wish to raise, there are provisions that address your rights to complete the work yourself, and there are provisions that address the issue of who pays for expert testing. Generally, you need to give notice to your architect and contractor prior to hiring an expert to examine the work, you will be able to complete the work yourself if the architect refuses to finish the project, and typically if the expert finds that the problem was caused by a construction defect the contractor will be obligated to pay for them. If there is no defect, then most likely, your district will be responsible for the cost
As a practical matter, your expert won’t be able to do their job without some cooperation from your construction team. Additionally you will need to have an expert if you exercise your rights under the contract to complete or repair the work yourself. Someone will need to tell you how to properly repair the problems that are of concern to you. You have code considerations and may have engineering considerations under some circumstances. If you ultimately have to sue someone on your team for a construction defect you need to be able to show that your repair work was not itself a cause of damages to your property.
What do you do if the contractor refuses to make the prescribed repairs? There are many options. Most of the standard contracts deal with the failure of the contractor to perform under the agreement. Self help can be an option, withholding payment can be an option, and termination can be an option as well. Before venturing into this territory, however, you need to understand some of the basic groundwork that must be laid in order to avoid shooting yourself in the foot. This will be the focus of the next article in this series. Avoiding the leaky roof and Avoiding shooting your self in the foot in the process.
What's New
Avoiding the Leaky Roof and What To Do When You Get One
June 13, 2007 & July 19, 2007
The problem with roofing systems and construction in general is that we don't know what we don't know. This training will give you the foundation you need to ask the right questions of your design professionals. We will provide you with information concerning your course of action in case of a roof failure. You will also learn how to properly document construction defects or suspected defects.
Our presenters for this sessions are David Hansen, pioneer in the area of preventive construction law and Steve Patterson, PE, CPRC, RRC of Roof Technical Services, licensed professional engineer and certified professional roofing consultant with 30 years experience.
Visit www.edlaw.com for more information and to register online.
Summer School Webinars
June & August 2007
Visit www.edlaw.com for more information and to register online.
Schwartz & Eichelbaum, P.C. and TASPA
jointly present
A Tropical Summer Personnel Law Conference
July 11, 2007
Austin Doubletree Hotel, Austin, TX
Visit www.taspa.org to register.
Seventh Annual
Schwartz & Eichelbaum, P.C. and the Equity Center
Seminar on School Finance and Legal Issues
July 20-21, 2007
Austin Marriott North
Round Rock, TX
Visit www.edlaw.com to register.
