Skip to main content

Dissatisfied with Home Repair

Guyton, GA |

We had a pool, hot tub and porch built. The project was never completely finished. Besides that, the porch ceiling is falling down, and the spillway from the hot tub to the pool is broken. We have constantly been promised it will be fixed. There is always an excuse... I have young children and feel the porch ceiling is dangerous. I have tried numerous times to get this repaired. What can I do now? I feel like I am going to have to hire someone else to fix the original mistakes.

+ Read More

Attorney answers 3

Posted

Your answer will depend on a few factors. Your contract is very important to determining the process to make demand and rights and remedies but there are other factors including whether the contractor was state licensed. Pool and spa contractors do NOT have to be state licensed to perform their work generally but the porch may be a factor if determining whether a state license was needed. In some jurisdictions they may have to have a local license from the health department. In all cases they must comply with the building code. Hopefully your jurisdiction is also one where a building permit was needed. You will need to discuss your situation with an attorney who understands state licensing and the issues as well as residential construction law. The sooner you do, the better. You want to do this before you hire a completion contractor to make any corrections or repairs or to complete the work so that you can document your case. It is also important that consideration of economics be considered -- just because ultimately you may be able to obtain a judgment for your damages from a contractor or in the right situation for return of all money paid (as I have done against unlicensed contractors violating state licensing law), does not mean you will get paid. Be sure to check out my website.

Disclosure: This answer and any information contained in this answer is not intended to be treated as legal advice. It is for informational purposes to educate about legal issues. You should contact an attorney for specific legal advice for your situation. Specific legal advice based on full knowledge of your specific situation and all facts may differ from general information. This posting does not create an attorney-client relationship or privilege of any kind. This attorney actively licensed only in the State of Georgia. If this is a Georgia matter, you may of course contact me to discuss possible representation. FEEDBACK: Both AVVO and other readers are interested in your feedback on the quality of the answers. Please check the “thumbs up” symbol if you find an answer helpful.

Posted

This is a frequent question on Avvo. Kevin Veler has given you some good advice. First and foremost, if your children are in danger you should take the necessary steps to protect them from any dangerous conditions. You should also alert the contractor that this is an issue. Be aware that Georgia law gives the contractor the right to repair defective home construction work. It can be very frustrating to follow this complex statutory procedure, but it is in your best interest to do so. Below I have given you several links to articles on Georgia's "Right to Repair Act." You should follow the statutory procedures carefully. Make sure that you have notified the contractor of every defect and allowed the proper statutory time for the contractor to repair the defective conditions. Thereafter, give the contractor written notice by certified mail that you are going to hire another contractor to repair the defects. Get the items repaired and file suit against the contractor for the cost of the repairs. There are a number of excellent construction lawyers in and around Savannah who would be glad to advise you about what to do and to guide you through this process. If the total amount in dispute is less than $15,000 you can file suit in Magistrate Court in the county where the contractor resides. Compliance with the statute can be complex and you would be well advised to talk to a lawyer who is familiar with the operation of the Right to Repair statute. Hope this helps.

Kevin M. Veler

Kevin M. Veler

Posted

Just an FYI, the Right to Repair Act applies only to state licensed contractors required to be licensed under Chapter 41 of Title 43 (thus Residential and General Contractors). As pool and spa professionals are an exempt specialty, the Right to Repair Act would not be applicable if the contractor was acting within the scope of the specialty (which in this case would likely be Outdoor Environmental -- which is a scope I created on behalf of the APSP working with the state licensing board) provided that the contractor did not exceed the specialty scope plus the permitted scope of $10,000 or 25% under Section 43-41-17 for specialties.

Michael L. Chapman

Michael L. Chapman

Posted

You make an excellent point, Kevin. I believe that your reference is to OCGA Section 8-2-43(d). As you note, the relative scope of each construction element is not clear from the facts as stated by the home owner. I think the best practice and what I generally recommend is that home owners comply with the notice requirements of the Right to Repair statute unless it is absolutely clear that the statute does not apply.

Posted

Attorneys Veler and Chapman have given good, detailed answers so I'll only try to supplement those with a practical point. The Right To Repair Statute was promoted by contractor groups who felt it might help them avoid burdensome lawsuits. Many observers think the law in its final form created as much burden as it possibly relieved. Some contractors don't like it and they may not include the notice in their contracts or some other communication with the owner that triggers its applicability. Review your contract and see if it's there or if you got the notice in any other form. If not, you path to court is simpler.
A second point: If you have defective conditions that are causing damage, that may trigger coverage under the contractor's liability insurance policy. If such insurance is in place, sometimes you get action and results from an insurer that you wouldn't get from the contractor himself.
A good construction lawyer in your area should be able to answer questions about the Right to Repair law, insurance, and other issues. Good luck.

Michael L. Chapman

Michael L. Chapman

Posted

Tom, you raise an interesting point. I know that the Right to Repair statute expressly states in OCGA Section 8-2-41 that the notice as to the rights of owners must be given, but it has always been unclear to me whether this means that the failure or omission to give the notice means that the statute does not apply. As of the date of this answer, Lumsden v. Williams, 307 Ga.App. 163, 704 S.E.2d 458 (2010) is the only case that I know of that cites back to the Right to Repair Act and that case approved a stay of litigation as a remedy for the claimant's failure to comply with the statute, but it really does not speak to the issue of the contractor's failure to give the required statutory notice to owner. You have probably seen the long article written by Frank Brown of Weissman, Nowack that discusses the Right to Repair Act. In that article he noted this as a point of confusion in the statute. Maybe we should bring this up as a discussion point at the next Atlanta Bar Construction Law Section meeting.

Thomas Richelo

Thomas Richelo

Posted

Michael is right that this law, still rather new, has not been fully "tested" in the courts. I think in the Lumsden case, the seller did include the OCGA Section 8-2-41 notice in the contract, but the buyers didn't follow that procedure at first, and the court directed them to do so. While this point of law hasn't been settled by a court decision, going on general principals of contract law, without the contractor/seller putting in a notice that limits the buyers' right to go to court, I would expect judges to hold that the Right to Repair statute hasn't been properly triggered. My analogy is to arbitration clauses, which also substitute a procedure in place of direct access to courts, where court decisions generally hold that arbitration won't be required unless the contract clearly calls for it. I would vote in favor of a clarification to this law if some court doesnt' provide one for us!

Real estate topics

Recommended articles about Real estate

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer