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missfrench1998

Contractor Dispute Resolution

Shannon Finsand
6 years ago

I just finished a variety of home remodeling projects working with a general contractor. Everything came out great except for the kitchen backsplash. Both the tile store and tile manufacturer weighed in and said that it wasn’t installed per TCA handbook guidelines. The grout line should have been wider to account for the variability with handmade tile.

I met with the contractor and she is willing to replace the backsplash, but she wants me to cover 1/2 of the cost, if she pays for all of it she won’t make any profit on the project. If I don’t agree we will have to go to arbitration per our contract. There were

other stipulations, she wants me to not use handmade tile, and she wants to use the same guy to install it (he did re-tile my fireplace and it looks beautiful). She also wants him to do the demo, because it would be too expensive to bring back the demo crew she previously used just for the backsplash.

I am looking for feedback on how to handle this. Is arbitration worth it?





Comments (36)

  • PRO
    Creative Tile Eastern CT
    6 years ago
    last modified: 6 years ago

    You have the TCNA guidelines and manufacturer recommendation in writing. Your contractor has nothing. Odds are the wall board the tile is installed on will need replacing also. Who pays for that? Your contractor priced the job based on something other than your selection. Any issues should have been discussed prior to installation. Contractor owns it now. At this point get a quote from the place you purchased the tile to do the entire thing. Give your contractor the option to give you that amount (material & labor) and walk away.

  • jellytoast
    6 years ago

    I'm kind of surprised that the size of the grout joints wasn't specified beforehand. Who supplied the tile?

  • Shannon Finsand
    Original Author
    6 years ago

    She was also our designer and was involved in selecting the tile, she purchased the tile.

  • aprilneverends
    6 years ago
    last modified: 6 years ago

    During our remodel, one of the tilers started laying handmade tile in the bathroom with too narrow grout line (which: a) he was told not to start on yet b) we actually did discuss the width of the grout with tilers' team), probably because he had some time left before going home that day, and was eager to to leave less work for later. He layed 40 sf feet of handmade plus specifically customized for us tile(it was flooring). Luckily we went in the evening to the site, and caught it on time. The GC and the project manager immediately agreed that has to be changed, and payed for same amount of same exact tile to the store we purchased the tile in. And re did it correctly.

    profit..our GC lost money on our project, actually. We kinda also are afraid to add up everything we paid, to know the exact number:) We also lost lots of time (because often he didn't have teams to send) and our health got worse. Such is life. Nobody made a profit. We got a house we love (to die in it sooner that we hoped LOL), and he found out about himself that he would love to continue to do a bit different houses, and is now into historical restoration:)

    its your contractor's business who she should bring for demo, but the tile should be on her, and the labor too.

    it's a pity nobody caught it on time, but mistakes happen. How to remedy them-might vary in each case. In your case-she specified tile herself, together with you, why now you should go for cheaper tile? I understand hits her financially and it terms of time spent since you'll probably need to wait if you don't have spare tile. But I hear from you you're happy otherwise..meaning the project went well allover. I think it should continue to go well, and for that, everybody pays in some form-you, by waiting, her, by paying.

  • _sophiewheeler
    6 years ago

    Education is expensive. The GC probably learned to not use that tile guy again if the tile guy won’t step up and fix his mistake without charging her.

  • PRO
    Joseph Corlett, LLC
    6 years ago

    Ms. French:


    Have your contractor read your initial post, only have her picture it as an online review with her name in it. Is this the face she wants to present to the world?


    When people read online reviews they quickly tire of all the glowing ones and go straight for the unhappies. Potential customers, at least the ones a contractor wants, are sophisticated and fair. When they read a bad review, they're asking themselves "How was this resolved?" They don't care to know as much about how things went swimmingly, they want to know what's going to happen if the wheels fall off their project.


    Your contractor would be setting a whole bunch of potentials on fire with you telling that she made you pay half. That's a lot more money than eating a backsplash.


    On other sites, young contractors write in asking for the best piece of advice the experienced guys can give. I always tell them that they've got to learn to take their beatings. Like you learned in third grade but seemed to have forgotten, life ain't fair. Losses like this are a cost of doing business, just like the light bill. Keep 'em to a minimum and you'll do fine.


    Your contractor is either a newbie, suicidal, or an amazingly good bluffer.

  • bry911
    6 years ago
    last modified: 6 years ago

    Online reviews hold little sway anymore, anyone can get Houzz reviews from their nefew, family extended circle of friends. Same with Home advisor. If you need to rely on the web for clients youre just not there yet.

    The biggest newsflash of 2018. The interweb is fake, see thru it.

    LOL, I think I have spotted one fake thing already.

    In a survey

    • 88% use online reviews to determine the quality of a local business.
    • 93% check reviews before spending.
    • 85% read up to 10 different reviews (proving one bad review is not that detrimental).
    • 88% trusted online reviews as much as they trust a personal recommendation.

    In a different survey, 86% of respondents who use Google to search phone numbers of local businesses, will avoid calling those who have fewer than a 4 star rating.

    Referral is a distant second in leads to online advertising today. Almost 90% of services are located through a search.

    -------------

    I am sure you are right and those well designed peer reviewed studies are wrong, because after all you're a contractor and the others are only customers. What would they know about how they spend their money?

  • thatsmuchbetter
    6 years ago
    last modified: 6 years ago

    nice speil, theres a lot of skewed studies out there but to further asess your skew id need to see sources and unedited at that.

    What your doing is a lot like how many people vote. Going online not really a factual pirsuit of anything truthful is it?

    Referral is KING has been since the advent of craftsmanship. No interweb or misinformation needed really.

    Ill leave you with a quote

    "if you dont have anything nice to say"........ you get the rest im sure

  • bry911
    6 years ago

    nice speil, theres a lot of skewed studies out there but to further asess your skew id need to see sources and unedited at that.

    I admit that I was kind of baiting a hook for you.

    I used the older version of the BrightLocal study, so not only does the internet hold sway, that sway is increasing rather than decreasing. The trend is actually a lot more important than the numbers. More people are using online reviews rather than less. I chose the BrightLocal study because it is one of the few that shows the questions and the results without asking for a journal subscription. I assume you don't have an Elsevier subscription to look at data gathered by academic researchers.

    You can slice this anyway you want it, you can believe the earth is flat if you feel like it, but I will bet your business on this statement. As the demographics of the consumer base changes from people who used the phone book for information to the people who have always had Google, the importance of your online image will increase. Joseph Corlett knows it pretty darn well and prides himself on protecting his online reviews, ask him if that is a business move he regrets.

    -------------------------

    Furthermore, your statement simply proves that you simply don't care about quality. What Joseph Corlett is suggesting is asking a contractor if they are comfortable letting this particular job and these actions speak for the quality of their work. Good contractors are going to protect that work for the sake of their reputation, writing off an online review as unimportant is EXACTLY THE SAME THING as writing off a word of mouth review. If referral is KING do you think a customer who leaves a bad online review is going to refer you to others.

    This is really nothing new bad work always had a larger impact than good work even by word of mouth referral. So it is not like protecting your internet presence takes any more effort than protecting your word of mouth referrals.

    --------------------------

    I'll leave you with a reality. "Honesty is the best policy." If you don't have something nice to say about the work your contractor did, then tell it to everyone so he can't take advantage of other people too!

  • Shannon Finsand
    Original Author
    6 years ago

    I appreciate everyone's comments related to my original question. Any thoughts on the arbitration process if I have to go that route?

  • bry911
    6 years ago
    last modified: 6 years ago

    Without numbers I can't really tell you anything about arbitration. How much money are we talking for half the cost?

    Also can you show a picture of the work as it is currently?

  • Shannon Finsand
    Original Author
    6 years ago

    Hard to say on the cost, from their perspective they want to use the same tile guy and he has agreed to around $1,700 for demo and installation + maybe $1,000 for the tile. That is if we pick different tile. If I want to stay with the same tile though I would want to use a different tile installer and I don't think they will agree to that.

  • Shannon Finsand
    Original Author
    6 years ago

  • thatsmuchbetter
    6 years ago
    last modified: 6 years ago

    Thats a crappy tile, and a horrible installation. Do not dance with these handyman again.. Your toes will hurt at the end of said dance.

    My backsplashes fall into an avg. of $40 sq ft for layout install and grouting. Demo is extra and if i show up and the walls arent IN PLANE and flat while also being Plumb. I add hourly to correct them FIRST so that we can achieve the best result by starting out with a chance.

    Think hard and fast now about letting them have a second go at your investment and the pain it may well bring.

    .

  • aprilneverends
    6 years ago

    ok..after seeing the picture above " he has agreed to around $1,700.. " would sound really funny if wasn't sad..

  • bry911
    6 years ago

    I am not a huge fan of hand crafted subway tiles in short applications. I think it can work really well on a feature wall behind a hood or something like that, but if you are only going the distance between uppers and lower I don't think they just tend to always look badly installed rather than old.

    Having said that, it is a bad install. If your contractor did that themselves then they bit off more than they could chew, had they hired someone capable in the first place they probably would not have lost so much money. There are times when jobs are pretty profitable and there are times when they just don't make as much as you hope, this is what happens when you try to turn the latter into the former.

    ----------------

    Here is what I would do. You aren't paying me, and I doubt I am licensed to practice in your state, so this isn't legal advice. For that advice see an attorney...

    For arbitration, I would gather as much evidence as I could, getting written statements from qualified tile professionals noting that the job is substandard and the cost to fix the job. Take the letter from the manufacturer as well as the tile retailer as well as the actual TCNA guidelines.

    I would then write a demand letter, or get an attorney to write one for me (you can find examples for tone all over the internet). I would demand that the contractor replaces the tile with a satisfactory substitute in a satisfactory manner at no cost to me. I would also say that if the contractor fails to make a timely and satisfactory arrangement for a no cost replacement then other arrangements will be made at the contractor's expense.

    Now this clause may not hold up in arbitration depending on the contract, but it goes a long way to denying the contractor the right to remedy the defect, and instead pay out cash. I would let the contractor know that I will be seeking monetary damages rather than other remedies. Arbitration will usually not require you to accept specific performance for work that you have given the contractor an opportunity to fix and the threat of monetary damages will often make arbitration less attractive.

    --------------

    On the other hand you can just pay the money. I am concerned though that you are going to end up with a more expensive version that is just a little bit better.

  • Shannon Finsand
    Original Author
    6 years ago

    The contractor did hire a tile installer, who did a good job on my fireplace. I do think that this handmade tile was outside of his comfort zone.

    We are concerned about the tile as you mentioned, and have been looking into alternatives with less variation.

    Does this tile install look bad enough for the contractor to be held accountable in arbitration? Am I better off asking for a re-do or asking for a credit to go towards having someone else do the install?

  • jellytoast
    6 years ago

    I'd like to see a picture of the "good job" on the fireplace for comparison. Frankly, I don't think this person is capable of doing a good job. That he's willing to let this stand as an example of his workmanship speaks volumes.

  • Shannon Finsand
    Original Author
    6 years ago


    This is is the fireplace for reference.

  • jellytoast
    6 years ago

    A closer picture?

  • Shannon Finsand
    Original Author
    6 years ago

    I will post one later, that is all I have on my phone.

  • Shannon Finsand
    Original Author
    6 years ago

  • PRO
    Creative Tile Eastern CT
    6 years ago

    I'm familiar with the tile. Thought you might want to see what should have been. Keep in mind the sizes are off up to 1/4" The term flat doesn't exist and under cabinet lighting would greatly exaggerate the unavoidable lippage. The small joint and horrible grout job on your project really trashed it.




  • Shannon Finsand
    Original Author
    6 years ago

    Thanks for posting, that looks so much better than mine!

  • Shannon Finsand
    Original Author
    6 years ago

    I just received a letter from my contractor telling me that we have to accept her terms of paying for half and having the original tile setter install new tile that is not handmade, and that we have to pay in full by 1/1/18 (we have paid 75% at this point) or a lien will be placed on our home. My contractor is also confident that if we go to arbitration that they will side in her favor.

  • Shannon Finsand
    Original Author
    6 years ago

    Yes, she insists that is the look of handmade tile and that it may have looked better with wider grout lines, but it would still have a wavy appearance with lippage.

    She also claims that she showed pictures to another tile setter and he said it looked like it was installed correctly. They are blaming the under cabinet lights. I don't deny that that the lights exacerbate the problem, but there is still is a problem.

    The lien aspect of it makes me nervous, but it also isn't fair to have to pay for substandard work.

  • thatsmuchbetter
    6 years ago
    last modified: 6 years ago

    its substandard TILE ... A#1

    you chose a poorly kiln fired handmade tile not really hand made and warped beyond donald trump himself

    grout joint size aside you will not win w/said tile

    the fact that your installer even took the job on and proceeded to make poor spacing decisions clarifys the problem et al

  • PRO
    Creative Tile Eastern CT
    6 years ago

    I'm able to zoom in on your photo's and your grout job is terrible. Even a average installer could have done better. They should be smooth even if they vary in size. Further more she knew of the under cabinet lights and still helped you select this tile. A Designer or professional tile setter would have warned you about the effects of lighting. Like I said get estimates. Then you will have installers providing their professional opinions. You will need these estimates anyway.

  • PRO
    Joseph Corlett, LLC
    6 years ago

    "My contractor is also confident that if we go to arbitration that they will side in her favor."


    Hahaha. That's a great bluff.


    I had my a$$ handed to me in small claims court on the testimony of an 84-year-old perjurer who attempted extortion a day after his victory.


    Arbitration is probably gonna cost you each a thousand dollars, win or lose.

  • aprilneverends
    6 years ago

    I don't know why your contractor decided on this war path against any logic but my gut tells me I'd distance myself at this point. For several days. Meanwhile get said estimates. Of course I'd want a) not to pay b) not to them, at this point, but something irrational about her choice here, and I'd let her cool off maybe before answering at all.

    I hope somebody has better suggestions.

  • PRO
    Tare It Up!!!
    6 years ago
    Miss French. This is an unfortunate situation. Subway tile is not the easiest to work with. I agree with the other person who also said it will never be perfectly flat. Nonetheless, you are right, the job wasn't done properly. Since you haven't paid the final balance perhaps you can advise that it's best to withhold the payment for the tile work and that you will have someone else redo it. People often throw around getting a lawyer as a scare tactic. I would not put my energy into that comment. If she files a claim, she will have to prove that she did the job correctly. Based on that picture, it's pretty obvious it wasn't done correctly. Good Luck
  • bry911
    6 years ago
    last modified: 6 years ago

    The lien aspect of it makes me nervous, but it also isn't fair to have to pay for substandard work.

    I really can't advise you what to do other than look into the specifics of disputing a mechanics lien in your state. I would not give in and personally would laugh about it. Then again in my state once notified they have only 60 days to bring a lawsuit or the lien is automatically invalid and you just file to get it released. In many states (including mine) filing a lawsuit is a waiver of the arbitration clause so effectively I can trick someone into voiding their arbitration clause by asking them to proceed on their mechanics lien.

    --------------

    I tend to be very aggressive in these things, but I would demand right back that the duty to perform the work in a workman like manner was not discharged and therefore, they must correct the defect in a timely manner, or forfeit their rights to correct. I would include the estimates for repair and send it registered mail.

    ---------------

    As for who will win in court... My experience tells me that these things usually go in favor of the person who has the most and best evidence (regardless of the merits). When you think you have enough evidence to win for sure, keep getting more.

  • bry911
    6 years ago
    last modified: 6 years ago

    Disclaimer: the following is an explanation of the legal system rather than specific advise to any one person. My actual legal advice is to see an attorney.

    ---------------------

    I wanted to follow up with a few more details about your situation and some other assertions, both for you and other people faced with this same situation in the future.

    First, you must begin this process with the ending in mind. So before you start, you should know where you want to end up. This includes preferred solutions and acceptable solutions.

    Furthermore, you should understand that in disputes everything that happens up to the day you are in court is a dialogue, a rather rude one, but still a dialogue. All you are doing is trying to firmly impart to the other side the risk and costs of not acquiescing to your desires. The strongest signals come at a cost to you, which is hiring an attorney. However, there are other signals that can be very effective that cost little more than time or a stamp.

    Now... The stated desire needs to be to have the selected tile removed and reinstalled correctly as per manufacturer specifications. The contractor doesn't get to dictate the look a customer is going for in their kitchen, and any defect in the manufacture of the tile needs to be taken up with the manufacturer of that tile.

    Next... A stated secondary solution could include installation of an acceptable substitute tile that the tile setter is more experienced installing. That needs to clearly be a secondary solution, and for the convenience of the installer. Admitting that the tile is undesirable is different than the installation is bad, focus instead on the fact that the installation of the tile doesn't look like other acceptable installations (e.g. pictures). Unless, of course, that isn't true. This will make favorable resolution easier.

    However, even if the problem lies in the tile itself, all is not lost. Most states have an implied warranty of fitness of a specific purpose for installations such as this. If a contractor helped pick out the tile, knowing the purpose it was for they had a duty to ensure that the tile was acceptable for that purpose. The tile installer also has that same duty prior to installation, so even if the customer chooses a substandard tile, the installer would have to say that he doesn't believe this tile will be acceptable in this circumstance. These warranties exist for every tile installer in every situation in most states, and must be specifically disclaimed in order to indemnify the tile installer. The idea that a customer will automatically lose because they picked a bad tile is complete B.S. The installer has a duty to mitigate damages by warning of the probable outcome from installing "bad tiles". These are weaker cases than substandard work, but are an effective counter to the tile being the wrong choice defense.

    ---------------------------------------------

    In my letter to the contractor I would make all of the cases above in a simple factual manner (after stating the details of the work). I would specifically note in the letter that the contractor had the duty of "implied warranty of fitness for a particular purpose" at tile selection and your tile installer had the same duty before installation (Google your state's wording on this), I would also note that the tile setter had, "a duty to perform the work in a workman like manner".

    I would then go on to discuss the mechanic's lien, by noting that I respect their right to file a mechanic's lien on the property but warn that I will be filing for dismissal of the lien after 90 days unless they file to enforce it, and that such a filing will render their arbitration clause void and I will immediately sue and ask that the mechanics lien be postponed until the resolution of my suit for damages. Furthermore, I will consider the filing of a mechanics lien to be an abandonment of negotiations for repair and will be forced to seek alternative resolution and just recompense.

    ---------------------

    The real goal of the above statements are to signal that I am a client that the contractor wants to settle with rather than get a lien and go to court. The message I want to send at this point is working with me will be easier than working against me. The above is an insight into my thought process. Please understand that deescalation might be better, or you might just wash your hands of the whole mess, pay the contractor and not deal with it.

    As always, you should seek legal advice when you feel it appropriate. Best of luck.

  • Shannon Finsand
    Original Author
    6 years ago

    I sent a counter-offer to my contractor asking to have a credit on the final bill in lieu of her facilitating the work. I felt that this option would be easiest on everyone. I asked for a credit of $2,955, this number was based on the original tile and installation costs, her 20% management fee for the items and an additional $500 for removal of the existing tile and repair work. She rejected the offer because she felt that it did not reflect responsibility on both sides. She is now pursuing mediation through the Contractor's Board.

    We informed her that we will send her the final payment less the above amount immediately, and asked if she still planned on filing a lien, no response yet.

    Does anyone have experience with contractor mediation in Oregon? I am wondering how much detail to provide when we file our complaint. There is a single page form to be submitted, but I was wondering if it is acceptable to attach a more detailed account of what has happened. Mainly to show her lack of cooperation throughout the process.

  • PRO
    Joseph Corlett, LLC
    6 years ago

    Tell her that her check can be picked up as soon as she signs a lien waiver. Common in construction.