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Pool Construction Defects

Choosing a Contractor and Knowing the Subcontractors:

In Texas, it can be tricky for those who wish to build a pool on their property. Swimming pool contractors in Texas are not legally required to have a license. This means that if you don’t research your choice carefully, then it is possible that you might accidentally choose a pool contractor who has never even actually built a pool yet! When choosing a contractor, be sure to get a list of references by other homeowners who have had pools built by that contractor. See if any of the references are willing to let you go look at some of the pools that your prospective builder constructed. If you have time, try to look at both newer pools and older pools to see how the newer pools look and if the older pools are still in good condition despite the time that has passed.

In California, swimming pool contractors must be licensed, so you should first visit the CSLB website and verify the contractor has a license. Then have your contractor provide you with a list of subcontractors that details what specifically the subcontractors will be hired to do. Then check the CSLB website again to make sure the subcontractors are also licensed.

If the contractor primarily works in Los Angeles or San Francisco, you can look at the local jurisdiction’s court web page to see if there are any pending lawsuits against the individual or the company. Just look under “register of actions” under Name Search for your contractor’s name. To find the website for the courthouse in your jurisdiction, visit: California Courts.

Contracts:

Be sure that all details are covered in the contract, no matter how minor they might seem. For instance, be sure the contract includes:
• Payment schedules
• Subcontractors’ schedules and the expectations of the work to be done by the subcontractors
• Specific types of materials that will be used on your project
• Provision that you will make joint payments to the contractor and specific subcontractors and/or suppliers. This ensures that the contractor pays the subcontractor so that you are not subject to later legal issues related to non-payment of subcontractors or suppliers.
• Requirement that the job file be kept on site at all times. All original documents and notices shall be maintained in the job file. If at any time the job file is subject to inclement weather, then the owner should keep the job file. If any documents are withheld or not maintained in the job file and no copies are available, lack of documentation will be construed against the provider of the document or notice.
• As part of the agreement to pay the contractor with joint payment, be sure to have contractors sign conditional release from lien claimants.
• Be your own project manager and inspect all work and supplies as the job progresses.
• When the job is completed, immediately file with the County Recorder’s Office a Notice of Completion. Contractors have a specific time limit to file a lien, so this will help assure peace of mind following work completion.

The California State Contractors Board (CSLB) has all of the forms described above available on their website.

For additional information and to protect your rights, contact a construction defect attorney to look over your contracts with the contractors.

Swimming Pool Construction Defect: Subsurface related deficiencies

Soil is a very important issue in construction. Builders and architects must consult with soils engineers prior to building to assure the structural integrity of the finished product. However, pool builders are rarely required to have soil engineers inspect the construction area prior to building a swimming pool. In fact, most often, you as a homeowner are unknowingly providing a guaranty to the pool construction company that your land is suitable for swimming pool construction. In other words, you are expected, through the terms of the contract, to act as an expert in soil conditions and provide assurances to the pool company that you do not have expansive soil conditions and that the pool, even if being built on a slope, will support the many tons of construction and water without failing.

Many construction projects, including swimming pools, are constructed on slopes, hills or other areas where it is difficult to provide a stable foundation. A lack of a solid foundation may result in cracked pool shells, concrete slabs, walkways, foundations, and other damage. If subsurface conditions are not properly prepared for adequate drainage, it is likely the property will experience various problems from subsidence (improper soil settlement) to landslides. Before constructing a swimming pool, you should contact an experienced swimming pool construction attorney.

Most homeowners building swimming pools in their yards are unaware of the fact that swimming pool construction is subject to fewer building inspections as compared with other areas of the construction industry. By this we mean that the plumbing on most pools is not checked for proper size/diameter. The gunite may not be inspected at all, or if it is it may only be inspected for a very short portion of this labor intense and time consuming portion of your pool’s construction. It is possible that the pool company will try to save money by purchasing smaller piping than is adequate for your pool. This will only cause you later problems with pool chemistry maintenance, pipe ruptures, and general sanitation and health standard concerns due to improper filtration. Pipes can be crushed if they cannot tolerate loads that are placed upon them by the construction of the pool. We have also seen cases where following construction the pool was located several feet from where it was to drawn on the blueprints. This can cause the pool to slide, especially if the pool is built on a slope.

Many swimming pool companies hire subcontractors to do trade work on the pool, and outside companies are brought in to build decks and other pool amenities. Just like swimming pools, concrete decking can crack, shift, rise, leak, dimple, and become pitted. The methods necessary to properly prepare the soil for pool construction also apply to the construction of concrete decking. Proper installation of rebar, gunite, and tile are all critical to how your pool will stand the test of time. Additional issues that arise in swimming pool construction litigation are kickbacks between homebuilders and swimming pool contractors, or between swimming pool construction contractors and their salesman, or the salesman and the subcontractors. This may ultimately affect the quality of materials used on your pool or result in hazardous short-cuts in your pool’s construction. The things that could go wrong are seemingly endless. Thus, it is very important to hire a pool company who holds themselves out to the community as being knowledgeable pool builders and maintains the standards of workmanship acceptable within the industry.

In California, swimming pool salesmen have to maintain a license. That license number should be displayed next to the licensee’s name on the contract you sign.

IMPORTANT NOTES

Review the contract with the swimming pool builder prior to construction to make sure that your rights as a home/landowner are protected.

Almost every contract has boilerplate language. Always read the boilerplate. Specifically, pay attention to the Arbitration Clause and negotiate that paragraph out of the contract. This paragraph does not benefit anyone other than the builder. Arbitrating a case means that you pay for the costs of an arbitrator as opposed to being able to utilize the taxpayer-funded civil courts and the judges who preside over them. Also, you give up meaningful discovery opportunities and the chance to learn what the other party plans to present in a case against you. To make sure it is not a part of the contract terms, put an “X” across the paragraph. You and the contract provider should then sign and date next to the paragraph. Another good idea is to add an attorney’s fees paragraph if there is not one. This protects each party from claims brought in bad faith. An attorney’s fees clause will assure the party with a meritorious claim that they will not be out thousands of dollars in attorney’s fees.

Have a swimming pool construction attorney who is knowledgeable about swimming pool construction defects, contracts, and the swimming pool industry is essential to making sure your rights are protected.

If the swimming pool construction company is not practicing due diligence by getting a soils engineer to inspect your land (not land “similar” to or generically like your land), use another company or, if the pool company requests it, hire the engineer yourself. You should be able to negotiate a reduced price for the construction of your pool if the pool company is only going to do part of the work necessary to assure your pool is built properly.

Swimming pool companies are always held to the standards acceptable in the swimming pool construction industry. Monitor the construction through the several stages of construction, taking pictures and notes through to completion.

If all else fails or if you have any questions and concerns, contact Shefman Law. We will help you with your swimming pool construction problems.

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