By Deborah Goonan, Independent American Communities
What is going on with all the recent lawsuits involving new construction of homes (and condominiums) on unsuitable soils, and without adequate foundations to support these dwellings?
In Wyoming, according to a report in the Casper Star-Tribune, dozens of homes in Mesa Del Sol Addition (West Casper) have allegedly been built with shallow foundations upon land sites with unstable and expansive soil. The lawsuit claims that the developer and construction companies involved were made aware of need to use drilled pier foundations for new homes in Mesa Del Sol Addition, but chose to ignore those instructions.
As a result, several of the 26 completed homes now have cracked foundations. Homeowners have been, or soon will be, forced to move out of their homes, which have been deemed uninhabitable. According to the report, there are still 9 vacant lots in the subdivision.
Lawsuit alleges developers ignored warnings about bad soil, rendering new homes uninhabitable
Arno Rosenfeld 307-266-0634, email@example.com Mar 28, 2017 13
Despite warnings, Casper real estate developers allegedly built improper foundations on new homes that are now becoming impossible to occupy, according to a lawsuit filed Monday by eight plaintiffs.
The lawsuit claims that the developers of the Mesa Del Sol Addition in west Casper were told that soil in the area was unstable and required a drilled pier foundation system, which can be used to bypass surface soil and connect to more stable earth, and that the land needed to be specially graded.
But the homeowners in the lawsuit allege the developers — Broker One Real Estate, Coupens Construction and Mesa No. 3 LLC — disregarded those recommendations and built homes without the special foundation or grading.
Several of the homes are now or will soon be uninhabitable due to cracked foundations, tilting floors, doors that won’t open due to walls that have moved, the lawsuit claims.
Reports like this provide an opportunity to illustrate, by example, the way new construction homes are sold across the U.S.
More about Mesa Del Sol Addition
Looking at the website for developer, Michele Trost Hall, and the Covenants for Mesa Del Sol Addition, it is apparent that the HOA is still under developer control until 2022. The community is small – only 35 lots – and the purpose of assessments is simply to maintain the mailboxes and an entry sign. Other than minimal maintenance duties, the HOA exists mainly to enforce architectural standards.
So, in this case, as in many smaller planned communities, homebuyers are not getting fancy recreational amenities. The community is not gated either.
And here is the description of the Common Area to be maintained:
One can argue whether the HOA is truly necessary at all.
Of course, the fact that the developer still controls the HOA complicates the process of filing claims of construction defects that affect not only individual homes, but also, potentially, the small common area for which the Association is responsible.
Trost-Hall’s website does not specify the amount of annual HOA assessments for homeowners. In fact, typical of many developer and home builder websites, there is minimal information provided about the HOA – no meeting minutes, no annual budgets, no audit report, no official list of architectural standards or rules and regulations, and other pertinent information.
There is a link to the Sales contract for individual parcels and homes. It requires mediation and binding arbitration to settle disputes. The developer, through Ashby Construction, offers a one year limited warranty, with all rights beyond that warranty waived by home buyers. Warranty disputes are resolved solely through arbitration.
To be fair, Trost-Hall’s sales and warranty approach are not unique. Although the length of home warranties for some home builders are considerably longer than one year, many developers and construction companies limit their liability with various contract exclusions, requirements to waive rights to a civil trial before a jury, use of mandatory binding arbitration, and holding onto control of the association until home construction is complete or nearly complete.
All the more reason for home buyers to be savvy about choosing a community, a home site, and a builder. No home buyer should rely solely on the developer’s sales agents or home inspectors. Have a qualified real estate attorney review your sales contract and the governing documents for the HOA, condominium, or cooperative association. An attorney that represents your interests should do the title search and provide title insurance.
Hire your own home inspector, and accompany him or her during the inspection.
The buyer would also be wise to check with the County and/or municipality to learn about the history of land use on the home site. Chances are, the new home builder is not going to provide full disclosure about the quality of the soil, the possible presence of contaminants in the soil, or the type of foundation required.
The existence of a mandatory owners association adds to the buyer’s potential future liability, so make sure that your attorney, and, if necessary, a licensed accountant review governing documents and financial records (such as the annual budget and audit report) as a condition of the sales agreement.