Posted: 5/25/2007 6:50:12 PM EDT
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Any contract with a builder or contractor should include elevations and section drawings of the project. You almost never can get a building permit without these. These drawings, both the elevation (front or facing view) and section (sliced cross sectional view) ought to have three items on them: 1. Dotted lines indicating the location og the buried footing. 2. Dimensions from the top of the footer to the top of the wall. 3. Both the existing and finished grade elevations, in relation to the finished wall. Produce these ducuments, and show the contractor that you already paid for a one foot footing with a four foot wall on top of it. Or get handed your ass. By the way... ...any tiebacks or deadmen in that retaining wall? I'm not seeing them... |
Tiebacks/deadmen are used to anchor building materials into a hillside to provide enough resistance to overcome the lateral forces that the earth will exert on the building materials. If the manmade wall isn't tied back, it can eventually collapse. I don't see any in the photo either, but certain types of construction methods can do without. I'm not certain in your case, but I do know that only railroad tie and timber construction absolutely require them regardless of wall height and soil conditions. At any rate, as a previous poster mentioned, all building projects of your size should be accompanied by plans (i.e. blueprints) and specifications. Since most construction "contracts" simply consist of 1 to 2 sheets of paper with a vague description of the work to be done, a contract price, and a start/finish date, there's obviously a lot that could be left to interpretation or gray areas. Plans and specifications solve this problem by becoming part of the overall contract documentation--that is, plans and specifications themselves (if present) become legally binding contract documents. If you have plans which specify a 12" footer and 4' of retaining wall, then the contractor has no right to come back and complain--she'll have to eat the cost. However, in the event that you don't have plans related to this project, resolution will likely become trickier. Unfortunately, contractors will initially possess the majority of the power upfront due to their ability to file mechanics' liens. I've witnessed many cases where this power alone was enough to "bully" a homeowner into ponying up the additional cash. At any rate, the better question at this point is this: Who drafted up the 'contract' documents and what do they contain? In the event of a dispute over a contract, courts attempt to interpret the contract using the plain meaning of the words in the contract. In the event that the provision being disputed is vague, the action of the parties is examined first. If the parties are found to have conducted themselves consistently with what they thought the provision meant, that provision would take that meaning. However, if the contract can't be clarified in this way, the interpretation goes against the part who wrote it. While it would have been good practice for the contractor to have come back to you to clarify the issue or to ask for additional money, the act of doing so was by no means mandatory if she believed she was acting consistently with the terms of the contract. EDITED to add: Additionally, another way to potentially strengthen your case if there are no plans would be to do the following: 1) Call a few other contractors in your area to inquire about the commonly accepted practice regarding this type of construction. Document this information as well as the name of the person you talked to. 2) Find out which individuals in your area most frequently serve as "expert witnesses" for construction litigation. If you have a community college in your area that teaches construction management / the trades, you can ask one of the instructors there who typically does this type of work. You can then probably pay one of these guys $100 upfront to discuss this case with you. If he feels that you're in the right, this individual would be a huge asset for you in court. 3) With this information in hand, you'd have more power to negotiate an out-of-court settlement if it comes to that. For what it's worth, I'm an ex-construction guy, not a lawyer, so you may want to talk to a lawyer as well. |
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I'm not too familiar with masonry (so maybe some other poster here can help you), but what I can say for certain is that your wall doesn't have tiebacks. A tieback would be a member placed perpendicular to the wall w/ the front end flush with the front and fastened. The rear of the tieback would be fasted to a dead man, which would be a small section of building material perpendicular to the tieback and parallel to the wall. When dirt is dumped on the tieback/deadman setup, there's force on the setup that resists the lateral forces on the wall. A typical setup would look as follows: | <--- Front of Wall |----------------------------------------------| <--- Deadman (covered with soil) | ^Tieback (covered with soil) However, as I said earlier, I'm not absolutely certain that masonry walls below a certain height placed in areas with certain soil conditions require them. Additionally, another thing that other posters didn't bring up was the need for proper drainage to avoid wall collapse due to hydrostatic pressure. It looks like this might be taken care of with the perforated pipe, but what somewhat concerns me is the lack of weepholes in the masonry. It may be worthwhile to hire a construction consultant for a minimal fee to get piece of mind. |
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The back wall is not the only BS she's trying. Here's some more crap she's trying to pull on me. The contract says: "Build six 8-foot wide steps in front of exisiting wall to provide access to the top of the planting bed. Mimic front landing and steps through current planting bed in front with flagstone." Those new lower set of steps look pretty much to me like they "mimic" the old steps that are up higher going to front door . Yet now she is saying that the ramped sides and columns were not part of the proposal and that I owe her an extra $1500 for that.  
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Bad news is, she's a flake. The good news is, that looks REALLY kick ass. ETA: The 12" other side of the wall might be an honest oversight and not included in the bid. The arch thing is her being an idiot, fuck her on that. The extra height on the wall, she should have known/sub should have known. But since it's an "incidental" I'd be willing to try to be reasonable on that. ETAA: Since this is Arfcom, a suggestion for problem resolution wouldn't be complete without... "DRAW DOWN!" |
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This is not legal advice, just the opinion of a contractor. I cannot believe she did any work based on such a vague agreement. I cannot believe she is ONLY hitting you up for $1500 on the sidewalls of the eight foot wide steps, as it had to cost a lot more than that to construct them. Since those walls are required to place the steps to begin with, they are not an "extra expense" anyway. It should have been figured in as part of the project expense and she has no business seeking more funds for that part of the job. It looks like they have done a fine job on the construction, but I agree that the wall height should be measured from the top of the footing, or the finish grade, not the bottom of the footing. I would have specified an average height above the finished lawn. It sounds like she does not know her job, and you should have gotten a lot more in writing before the work began. I'm guessing changes were requested after the work was started, such as the appearance of the back of the retaining wall, which throws even a well prepared bid out the window. It also appears she did not understand your expectations before she bid the job. All I can add as a tradesman is I am glad I am not involved. You have a beautiful property.  Good luck with your negotiating. |
I agree with Bama-Shooter. Hire a lawyer and construction consultant to get all of this crap sorted out. In addition, DO NOT pay in full until you're satisfied. If you give up the money, you have no recourse left. Just remember... You paying LATE or delaying is only an immaterial breach of the contract (if you refused to pay completely, that would be a material breach). A contractor completely walking off the job, however, results in a material breach of the contract which renders the contract void. Courts will look at the latter situation much less favorably. |