You purchase your dream stucco-clad home from a “reputable builder”. Everything goes according to plan and you and your family move in to finally enjoy the fruits of your labor. However, as time passes your dream home quickly turns into a nightmare. Perhaps it started with one leaky window or skylight. Then you saw scaffolding erected around your neighbors’ homes. Now, an engineer is telling you that you have massive water infiltration and recommends all the stucco be removed so the underlying damage can be remediated. You and your family endure months of construction—constant dust, noise, workers coming and going, scaffolding and “porta-potties”. Worst of all, you are left with a six-figure bill and are faced with a complex claim involving numerous parties, documentation and expert witnesses. You ask yourself, where did I go wrong and what do I do now?
The answer is you probably did nothing wrong. Across Montgomery County, Bucks County, and the greater Philadelphia area we are seeing an unfortunate increase in water infiltration claims stemming from the proliferation of new construction of these stucco-clad homes over the last decade. At Fairlie & Lippy we understand this discovery may be devastating to a new homeowner who recently invested in their dream-home. We have the resources and experience to ease the burden during this process while increasing your chances of just compensation. If you have purchased a stucco home and are experiencing leaking or other construction defects like peeling or discolored stucco, contact Fairlie & Lippy. We will help you hire experts to investigate the reasons for the water infiltration, help you through the remediation process, and fight to obtain the compensation that is available to you under the law.
What causes the leaking and who is responsible? Developers, builders, subcontractors, and manufacturers alike can all be held responsible for these problems that occur primarily in the “exterior cladding system” or “building envelope” of the home. The “building envelope” is the name for the physical divider between the interior and exterior environments of a building. This would include the roof, the sheathing, wrapping, windows and doors. Water infiltration beneath the stucco system can cause major rotting that can damage the interior surfaces and framing because once the water penetrates behind the system there is no way for it to dry out. Instead, it saturates and damages the plywood or oriented strand board (OSB) sheathing and framing, causing extensive rot and mold.
There are various infiltration points common in these cases:
- Through the stucco system itself. As mentioned, stucco is a “cementitous” material that is not watertight. As such, water will transfer through the exterior of the home to the underlayment, which consists of “wrapping” and “felt.” The “wrapping” is a paper that is designed to prevent outside water from entering the walls. The “felt” is asphalt saturated and manufactured to provide a second line of defense against penetration. The stucco system itself is generally supposed to be installed in three layers: the base coat, the brown coat, and the finish coat. Collectively these layers should be around an inch thick, but it is very common to find that this standard is not met in modern construction. In addition, the “wire lath,” the name for the wire mesh that the stucco is applied to, should be nailed every 8 inches. If the stucco system is not installed correctly or is too thin, the homeowner is left with an inferior wall finish that is easier for water to infiltrate. When more water infiltrates than the underlayment is designed to handle, water infiltration to the interior environment of the house occurs.
- Through insufficient felt. The asphalt infused felt is designed as a surface allowing water penetrating the stucco to drain down and out of the exterior of the home or to dry before infiltrating through the felt to the sheathing. Many building codes call for this felt to be “15 pound” felt. However, it is not uncommon for builders to use a felt that does not meet this standard, which would reduce the performance of this function, increasing the chance of water infiltration.
- Through Improper “flashing” of the windows, doors or the roof line. Most codes call for flashing details at these intersections. “Flashing” refers to home wrap or other impervious materials installed to prevent the passage of water into a structure from an angle or a joint. If these details are not followed correctly, water may infiltrate through the angles or joints and leak down behind the underlayment and into the sheathing. Here, investigators will look for what is known as “reverse lapping.” With “reverse lapping,” instead of repelling water, the installation method actually channels the water into the wall cavity. Prolonged water infiltration then weakens the building structure over time until cosmetic damages become visible.
- Through the absence of caulk and caulk joints around widows, roof and wall intersections. Wherever the stucco system meets a different surface, the two surfaces expand and contract at different rates as the temperature increases or decreases. This variant expansion creates a seam through which water can infiltrate the exterior envelope. Therefore, caulk joints and caulk should be installed to seal these joints and prevent the creation of gaps through which water can infiltrate behind the stucco system.
How do I know if I have water infiltration? This is a common question in these cases because while water may be infiltrating your home, it may be a matter of years before this is evident by a visual inspection. Often, because of improper flashing or sealing, homeowners first observe the damage as staining of the stucco under the corners of the windows or skylights. Regardless of the area, the best way to diagnose water infiltration is to hire a professional moisture inspection company that will drill holes under windows and other likely infiltration avenues and then insert moisture probes to test for the presence of moisture. In some cases there is no moisture found, but the experienced professional can determine that there was no resistance to the probe, indicating an area that is so thoroughly rotted that there is no structure left to retain moisture. Other testing techniques that are more or less destructive area available, such as infrared testing and destructive cuts.
What should I do if I think I have water infiltration? Contact an experienced attorney who can help assist you through the process. The testing, and if need be the eventual removal of the stucco, are important steps that need to be performed meticulously and accurately to increase the chance of a successful settlement. Homeowners often repair their homes without sufficient documentation and without allowing a full opportunity for the relevant parties to perform an inspection, which creates a spoliation issue that can be devastating to the case. Photographs alone do not always clearly reveal the manner of the lapping or the damage to the sheathing. Thorough and documented inspections of the home during each stage are critical to assessing the source and extent of the damage. At Fairlie & Lippy we know what is needed to put on a successful case and can assure that the investigation at each stage is as thorough as possible.
What legal theories are available? In these cases, the most common legal theories pursued in Pennsylvania include the Implied Warranty of Habitability, the Implied Warranty of Workmanlike Construction, and the Pennsylvania Consumer Protection Law.
- In Pennsylvania, there is an “Implied Warranty of Habitability” for newly constructed homes because one who purchases a new home justifiably relies on the skill of the developer that the house will be a suitable living unit. In other words, if you knew the house would leak, you wouldn’t have purchased it! The Implied Warranty of Habitability is a powerful legal remedy because it often exists irrespective of what was included in the contract and whether or not the builder-vendor used reasonable care in the construction of the house.
- In Pennsylvania, there is also an Implied Warranty of Workmanlike Construction for newly constructed homes. In addition to warranting that a house will be habitable (i.e., absent leaking), a builder-vendor also impliedly warrants that it has been constructed in a reasonably workmanlike manner. “Workmanlike construction” has been described as construction in accordance with contemporary community standards.
- Lastly, the Unfair Trade Practices and Consumer Protection Law (UTPCPL) was adopted to protect the public from fraud and unfair or deceptive business practices. Here, if the builder-vendor made a representation, upon which you justifiably relied and the representation turned out to be false, you may have a claim. The UTPCPL is a powerful legal avenue because it provides for “treble damages,” or triple the amount of the actual/compensatory damages, in addition to attorneys fees. It is therefore important to speak with a well-versed attorney who can discuss your case with you and determine what legal theories are appropriate.
What remedies are available? Determining the compensation available is very fact specific and depends on the circumstances of your particular case. Therefore, it is important to contact an experienced home-construction attorney who can personally evaluate your claim. Generally, in new construction cases the homeowner is entitled to receive what he or she contracted for, which means (1) a completed, waterproof house; (2) at the cost that you agreed to pay for it; and (3) in the time that you requested it. Therefore, you are entitled to compensation that will essentially attempt to put you in the same position you would have been in had the home been constructed properly. Other potential damages for owners include:
- Lost profits/use
- Out of pocket expenses such as cost of repair or the diminution of property value
- Punitive damages and attorneys fees
How long do I have to bring a claim? Every state has certain time limits, called “statutes of limitations,” which determine the time frame within which homeowners can file a claim. In Pennsylvania, the statute of limitations for a breach of contract or a breach of warranty case for home construction is four years. However, in appropriate circumstances, the statute of limitations may be tolled, extending the period of time in which suit may be brought. Obviously, a person cannot bring a lawsuit for something he or she is unaware has occurred. It is for this reason that “the discovery rule” exists. The “discovery rule” tolls the statute of limitations until the time at which a person becomes aware that a cause of action exists. Under this rule a person must exercise the level of diligence that a reasonable person would employ under similar circumstances. For example, if you purchased your home in 2000, but discovered leaking in 2005—the statute of limitations would normally bar recovery for warranty claims. However, if you employed the level of diligence that a reasonable person would use given the same circumstances, then the discovery rule would allow recovery because the four year statute of limitations would not begin to run until 2005, when you discovered the defect. Consequently, it is important to contact an attorney with experience in new construction litigation as soon as possible to ensure that you receive everything to which you are entitled to under the law. No lawsuit may be brought after the Statute of Repose has run, regardless of date of discovery. The Statute of Repose in Pennsylvania is twelve years – the absolute latest that such a lawsuit may be brought.
There are many more important considerations and issues that should be discussed before dealing with defective stucco housing. Sticking your head in the sand is not an option. Talk with an experienced litigator as soon as possible to make sure that you do not jeapardize any claim that you may have.