Non-Adherence to Contract Term

[HelpMePlease!]

Jurisdiction

Illinois

My spouse and I own a home in suburban DuPage County, IL. Our home is on a hillside with a walk-out basement. The basement sliding door opens out to a large hardwood deck which surrounds our above-ground pool. The footprint of the deck is approximately 550 square feet.

We signed a contract with a local company to replace all 550 square feet of the deck that you walk on. We requested the company use cedar for the decking. The contract specifically states that cedar wood is to be used.

They are finished with the demolition of the old deck. They are finished with the installation of the new deck. All that remains is for them to haul away all the debris and to stain the deck.

The cost of labor and materials for this work was estimated to be $26,000 with the final cost dependent on the cost of the materials actually used. We have paid the company $15,000 thus far.

Our issues are as follows:

1. The decking company emailed us the Home Depot invoice for the materials. The invoice indicates that they purchased and used pressure treated hardwood for our deck rather than cedar. This is not what the contract states and not what we want.

2. Our above ground pool has been damaged in the process. The damage is beyond the repair capabilities of the construction crew. It will require a pool professional.

Do we have any legal recourse here? What advise can you give me as to next steps regarding the 2 issues above?

 

[Zigner]

What happened when you asked them about this?

 

[HelpMePlease!]

We that have not discussed anything with them yet. I am gathering information at this point in anticipation of discussion.

 

[Zigner]

We that have not discussed anything with them yet. I am gathering information at this point in anticipation of discussion.

It seems you are doing things out of order. For all you know, they will agree and swap out the materials without a problem, and also work with you on the repair.

 

[zddoodah]

What advise can you give me as to next steps regarding the 2 issues above?

I advise you to discuss the two issues with the contractor. If you can't resolve the issues to your satisfaction, then you can consider legal remedies.

 

[adjusterjack]

1. The decking company emailed us the Home Depot invoice for the materials. The invoice indicates that they purchased and used pressure treated hardwood for our deck rather than cedar. This is not what the contract states and not what we want.

Where the heck were you when the materials were delivered to the job site? Where the heck were you when the workers started the installation with those materials?

You had at least two opportunities to inspect and determine that the wrong materials were delivered.

Having allowed the installation to proceed with the delivered materials might not give you any recourse at all.

2. Our above ground pool has been damaged in the process. The damage is beyond the repair capabilities of the construction crew. It will require a pool professional.

Call the owner of the deck company and advise that you hold his company responsible for the damage. Follow up in writing. Get a pool contractor to inspect the damage and write up the repair cost and present a copy to the owner of the deck company.

We that have not discussed anything with them yet. I am gathering information at this point in anticipation of discussion.

That's ridiculous. You should have jumped on this the minute you saw the damage.

 

[zddoodah]

Where the heck were you when the materials were delivered to the job site? Where the heck were you when the workers started the installation with those materials?

You had at least two opportunities to inspect and determine that the wrong materials were delivered.

Having allowed the installation to proceed with the delivered materials might not give you any recourse at all.

I disagree. A homeowner has zero obligation to hover over a home improvement contract while materials are being delivered or to discern that materials aren't in compliance with the contract before they are installed. The only way this might impact the OP's ability to recover is if the OP had actual knowledge that the wrong materials had been delivered prior to installation and failed to protest the installation of the wrong materials.

 

[adjusterjack]

A homeowner has zero obligation to hover over a home improvement contract while materials are being delivered or to discern that materials aren't in compliance with the contract before they are installed.

As a practical matter (as in "real life" and "reality") a homeowner MUST do exactly that to protect him or herself from unscrupulous, incompetent, and negligent contractors. Even the most reputable of contractors can make mistakes.

Self preservation is nobody's business but one's own.

 

[Zigner]

As a practical matter (as in "real life" and "reality") a homeowner MUST do exactly that to protect him or herself from unscrupulous, incompetent, and negligent contractors. Even the most reputable of contractors can make mistakes.

Self preservation is nobody's business but one's own.

Agreed - and to expand on this I will share an old proverb: An ounce of prevention is worth a pound of cure. If the problem can be prevented at the beginning, it saves a TON of time and energy on the back end.

 

[zddoodah]

As a practical matter (as in "real life" and "reality") a homeowner MUST do exactly that to protect him or herself from unscrupulous, incompetent, and negligent contractors. Even the most reputable of contractors can make mistakes.

Self preservation is nobody's business but one's own.

Whether or not it's a good idea in practice, the law (which is what we're talking about here) imposes no such obligation. The OP not doing this will have no impact on his/her ability to recover against the contractor.

 

[adjusterjack]

What you should have written:

"The OP not doing this will have no impact on his/her ability to win a lawsuit against the contractor."

Recovering the money is something completely different. Judgments against contractors are often Pyrrhic victories when the judgments become uncollectible.

 

[Disabled Vet]

Read the contract again... The main part (decking, handrails) of the wooden deck might be cedar. The supporting (frame) part might be pressure treated.