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THE MOLD CONTROVERSY (cont'd)
Holding Bad Builders Acccountable
The construction industry is very competitive. Many startup builders hungry to get established build for less than more established, more reliable builders. This creates market pressure downward which appeals to consumers. But as customers all too often find out to their dismay, it is not what you pay, but what you get for what you pay that counts the most. To respond to this competition, however, even good builders cut corners. Look around your neighborhoods. Even expensive houses often have cheap doors and baseboards. All too often, the need to finish the job and start the next one leads builders to work through wet weather. As they do they close up walls with insulation and drywall even when they are still wet inside. The builders hope the house dries out over time, but the EPA has recently stated that mold can begin growing as early as 24 to 48 hours after the building materials become wet. What some of these builders are doing is constructing self-composting buildings, which start rotting as soon as they are built.
Holding builders accountable is not always easy. The building industry has perfected lobbying to an art form. Builders associations can lavish campaign contributions on legislators, permeate and populate oversight arms in the public beauracracy and stall or defeat any consumer legislation that comes down the road. They have even made it a point to elect sympathetic judges to our appellate courts. A case in point is the recent “Homeowner’s Bill of Rights” in Washington state that never saw the light of day in the last legislative session. In Oregon, the governor appointed a Construction Claims Task Force after the verdict we received in Haynes v Adair Homes, a toxic mold case tried in Clackamas County in 2005, and following news stories that revealed the paucity of insurance coverage for such claims. Builders and insurance executives peopled the CCTF, but the overwhelming weight of submissions and testimony from many of us on the front lines of the issue led it to recommend a number of measures to the legislature that would have changed things for the better. At last report, the building industry was bent on preventing those recommendations from ever becoming law.
So how do you hold bad builders accountable? It is not easy. Many, if not most, of the construction contracts in use today have binding mandatory arbitration clauses that create an atmosphere in which builders are rarely held accountable for poor construction practices. The homeowner may enter into this agreement to arbitrate without even knowing it. Upon filing suit, the court will receive a motion from the builder-defendant stating that the case does not belong in court but has to be resolved in binding arbitration. Judges like to lighten their workload by sending cases to arbitration. Who can blame them? Sadly, building contractors often select an arbitration company to hear any disputes with its customers. That arbitration company likely receives repeat business from this builder—so guess whose side it is likely to be sympathize with? Not the side it sees once, but the side that is a regular customer.
Public building inspectors are frequently of little or no protection to the homeowner. Many of them are ill trained and lack knowledge. Even qualified inspectors are inspecting, not to see that the builder employs good workmanship, but to see that certain minimum building codes are met. Most people do not realize this but building codes are minimum codes, not necessarily the embodiment of good construction practices. As such, there is little incentive for builders to put safety or the health of their customers above profits.
The errors in building which contribute to mold problems include lack of flashing around windows and doors, improper grading and drainage, use of wet materials or building in wet weather without thoroughly drying the materials before shutting up the wall cavities with insulation and sheet-rock, plumbing failures, improperly installed dryer vents, lack of vapor barriers, improperly vented or inadequate fans in bathrooms and above stoves, improperly installed roofing, and much more. Even constructing homes in heavy clay soil can lead to problems as the excavation becomes a collecting point for surface run off which can pool up in the crawl space. All to often, when one of these failures occurs, it can be years before mold is discovered. By then, the damage is done, your kids are sick and you find yourself having to make payments on a house that you cannot occupy.
In some states, the law requires you to give notice to the builder and an opportunity to correct the defects before you have a right to sue. These “right to repair” laws are designed to lessen the number of court cases and the legislature wants the builder to have a chance to do the right thing. Usually, the builder will be in denial and will show up, if at all, concerned about making a “band aid” fox so he can claim he repaired the problem. These “right to repair” statutes sometimes have specific provisions about how to give notice and what is required of you. It is important that you consult an attorney before taking any official action that could end up preventing you from holding the builder legally accountable. But very few construction attorneys truly understand mold.
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