Homeowner Fired Contractor..Homeowner Wants to Secure Permit Can They????

[Mark K]

The building official is not in a position to require a letter from the engineer that the retaining wall was constructed in acordance with the plans. The building official can require inspection reports, test data, calculations, and engineering reports as necessary to help determine if the retaining wall is acceptable.

The fact that other building officials have required similar letters, and maybe some engineers were stupid enough to write one, doesn't change the fact. In most cases what they probably get is something that says based on information provided by others and his inspection of the completed wall it is the engineer's opinion that the wall was likely built in general conformance with the plans. As far as the building official is concerned this is CYA and does't relieve the building official from the responsibility to make a decision whether or not to accept the completed wall.

Unless the engineer was there continually during construction of the wall, very unlikely, he cannot make such a statement and even then it will likely be highly qualified. Making such a statement would mean that his errors and omissions insurance would not cover any problems and would subject himself to strict liability as opposed to professional liability theories of liability.

 

[Mule]

Mark K, Isn't a letter and a report the same thing?

And when we get a letter/report it does not state: is the engineer's opinion that the wall was likely built in general conformance with the plans.

We require the letter/report to specifically state that the wall was built in conformance with the plans.

 

[Mark K]

The problem is when you require that the engineer state that the work was done in conformance with the plans. If the engineer was not there when the work was done he is not able to state that work was done properly because many of the details are no longer visible. The steel could be the wrong size and in the wrong location. The grout could have been batched improperly.

By stating that the work conforms he could be considered to be making a guarantee of this and thus be strictly liable if there were problems. Engineers express professional opinions and make recommendations based on the data. If there is subsaquently a problem after the engineer has rendered an opinion he is liable only if he it can be shown that he did not exercise sufficient care in how he did his work and came to the conclusions.

When the engineer makes a guarantee his errors an ommissions insurance will not cover any claim. This may mean that there is no money availible to the owner if there is a problem or that the engineer will loose his house if the claim is large enough. The engineer has no legal obligation to make a guarantee and given the risk it seems stupid for him to do so. The building official has no authority to require a guarantee of the owner let alone his engineer.

If you have been geting letters without qualification you are either dealing with ignorant engineers or individuals who will sign anything to make the building official go away. You may have a piece of paper in the file but it would not make me feel good.

A letter can be a report but generally a report is something more.

If an engineer were to issue a report he would report on what sort of investigation he did to confirm that the existing construction conformed to the plans. This might include field observation of the completed wall, measurments taken, results of non destructive tests to determine reinforcing size and location, test results of cores from the wall to determine the strength of the masonry and grout. Pictures taken during construction could be used to identify concerns of the lack of concern. The report would then analyse the data, draw conclusions, discuss the implications of the conclusions and possibly make recommendations as appropriate.

The building official would then, possibly with the input from his engineer, review the conclsions and decide whether to accept the conclusions and recommendations. I woud assume that the building official would access suficient fees to pay the cost of the review of the report. If the owner find this too expensive and time consuming he has the option of demolishing the existing wall and following proper procedures when he rebuilds it.

I would recommend that the building official exercise judgement when evaluating defects. The existing construction might violate some code provision but but essentially meet the intent of the code.

A report can be very simple or very complex depending upon the level of concern. In the case of a low retaining wall the engineer could possibly show by calculations that the wall is still safe even if the reinforcement was not properly placed or the grout was poor. This may mean that testing of the existing construction is not necessary. Hopefully everybody would only do the minimum amount of work to decide how to resolve the problem.

If the report identifies problems it might propose a fix to resolve the problems. This would then result in the submission to the building official of supplemental drawings showing the fix.

 

[BSSTG]

We require written letters from the property owner to fire the contractor. Then the property owner can secure his permit only if he has a homestead exemption. Otherwise, he must register as a contractor. In that case the elect and plumbing would require permits from contractors also. Only if the homeowner has a homestead exemption can he do all the work here and in most parts of Tx. Maybe different other places?

BS

 

[D a v e W]

We do not care here, permits is to the property (owner). When the final inspection is requested we will respond and preform our inspection. Hence lien rights for the contractor. Happens every now and then here.

I would have thought the fencing would have been on the origianl design documents and scope of work based on swimming pool requirements. And all permits isssued at the same time.

When did the fall out happen, after everything was inspected for release of palster and fill? This could not have happened without correct fencing in place anyway. Just curious....

I do not believe the permit can be revoke either as it was not issued in any error.

If anything I would letter the property owner that the pool has not been approved for usage at this time.

Generally this is the advise from our council regarding these type of issues, permit then expires and it is forwarded to code enforcement section for action.

 

[peach]

some places will not issue a pool permit for an in ground pool to a homeowner... (like a couple of places I've worked).

 

[Mule]

I would have thought the fencing would have been on the origianl design documents and scope of work based on swimming pool requirements. And all permits isssued at the same time.

In our area the fence permit and the pool permit are separate permits. They may or may not be issued at the same time. The fence is required to be "to code" prior to filling the pool with water. Along with door alarms or other approved means to provide protection to the area of the pool.

When did the fall out happen, after everything was inspected for release of palster and fill? This could not have happened without correct fencing in place anyway. Just curious....

Yes, after all inspections and prior to the placement of the plaster. The reason we don't require the fencing to be in place at this point is because of the machinery being used always removes the fence anyway.

I do not believe the permit can be revoke either as it was not issued in any error.

We actually didn't revoke the permit. We closed the permit from the point where the homeowner took over.

If anything I would letter the property owner that the pool has not been approved for usage at this time.

We did. However stopping them from using the pool is a enforcement nightmare.

Generally this is the advise from our council regarding these type of issues, permit then expires and it is forwarded to code enforcement section for action.

Unfortunately we are the code enforcement section....small town..lot's of hats.

 

[brudgers]

Any non-compliant construction is the responsibility of the person who pulled the permit...in the case of the pool, that would be the contractor.

From the Building department's standpoint, any enforcement for the pool should be against the contractor. All the he said-she said doesn't matter.

The contractor can't shirk his legal responsibility to get inspections just by walking off the job and it's not the building department's purview to reassign responsibility when the homeowner acts like a jerk.

 

[Mark K]

Non-compliant construction is the responsibility of the Owner. When the contractor pulls the permit he does so acting as an agent of the Owner. Reference Section 105.1 of the IBC

It is not the building department's responsibility to assign responsibility. The building department enforces the code.

This does not mean that the Contractor doesn't have a contractural responsibility to fix the non-compliance. It simply means that the it is up to the Owner and the Contractor to work that out between themselves. There may be situations where the Contractor has no obligation to fix the problem unless he is paid more.

 

[brudgers]

That's a BS interpretation of 105.1.

When the authorized agent secures the permit, the authorized agent is responsible...that's what a contractor's license means.

In this case, the work was completed without the benefit of inspections and the contractor was responsible for scheduling required inspections so long as the permit remained active.

This should be held against the contractor and their license.

However, the AHJ is letting the contractor off scott free.

Contractual responsibilities are not relevant to the building department because determining contractual obligations is best left to attorneys and the courts.

The AHJ can only look at the relevant facts:

1. There is an active permit issued to the contractor

2. The work was completed and occupied without the benefit of required inspections.

If the contractor did not abandon the permit, that's just too damn bad for him.

 

[Mark K]

It just so happens that the BS interpretation is the correct one.

When an agent takes an action on behalf of the owner the owner is obligated as if he personally took that action and is responsible in this case for code compliance. The fact that the owner may have legal recourse against his agent is a matter for the courts.

It is not the AHJ’s role to hold the Contractor responsible. Thus you should not be concerned about the AHJ letting the contractor off scott free.

Suggest you consult with the attorney representing your jurisdiction. You may get a less polite response from the Contractor’s attorney if you tried to force the Contractor to take responsibility.

 

[TJacobs]

The owner is ultimately responsible. The owner's attorney is responsible to sling enough BS that his clients responsibility can be distributed among others involved.

 

[Yankee]

I agree with Mark K and TJacobs

 

[brudgers]

My take is probably skewed by Florida law which ties contractor laws into the building department's role (code officials are also state licensed).

Would you allow the pool contractor to pull another permit in your jurisdiction?

Would you file a charge against his license?

 

[Yankee]

My take is probably skewed by Florida law which ties contractor laws into the building department's role (code officials are also state licensed).Would you allow the pool contractor to pull another permit in your jurisdiction?

Would you file a charge against his license?

Quite possibly.

If a contractor is not doing his work to code it is a matter between him and his licensing board, and I would report, yes.

 

[Mark K]

You can report a problem to the state licensing board if the contractor violates any licensing laws. Similar for architects and engineers.

You cannot refuse the pool contractor the right to pull a permit just because he is on a blacklist for bad work. What you can do is be more thorough than usual in your plan check and visit the job site more often. If the contractor looses his license you can then refuse to issue a permit to him.

The building department can compliment the efforts of the state licensing boards and vice versa but they are distinctly different.

 

[Mule]

The situation I have is totally different. The State of Texas does not require contractors to be licensed. The pool contractor requested all of the inspections required and passed all inspections up until the homeowner fired him.

I am still having trouble getting the homeowner to secure the proper permits to get the pool into compliance with all finals.

Next step...citations.

 

[Jobsaver]

In most cases where a homeowner wants to pull the permit, they need to display competence to do so.I'd send them a notice of illegal use. Send it certified.. take it to court. Let them say "screw you" to the municipality in front of a judge.

I'm with Peach on this. Cite the homeowner to court for the portion of these circumstances that have no bearing on the dispute between the owner and contractor.

There are two distinct issues here. One is the change in the contractor relationship, the other is that the homeowner appears to be in rebellion against the ahj.

Also, we always try to make phone call interviews between all parties involved, and a courtesy inspection at first notice of these type circumstances so that scope of work completed by the original contractor can be recorded in the building file. As ahj's, we do hold all parties accountable to terminate any building relationship within the confines of the permitting process. Sometimes, this insures that homeowners are protected from unscrupulous contractors. Sometimes, this helps protect contractors from unscupulous homeowners.