Dream Home Nightmare: When It Rains, It Pours: Couple Grapples With Leaky Home

Built-in MISERY: Water problems leave cracks in Jeffco couple’s dream

By Lori Tobias
News Staff Writer

[below are excerpts from full article – click here to read PDF version of entire article]

In 1994, Pam and Bill Kelker moved into their dream house, a custom-built, two-story stucco with a commanding view of the Denver skyline.

Six years later, they’re living every homeowner’s nightmare. Rainwater is seeping into their 3,000-square-foot showcase home in Jefferson County, leaving the infrastructure moldy, mildewed and potentially weakened.

The Kelkers declined to discuss the cost to build their home, but neighboring houses typically sell for $400,000 to $500,000. Today, the Kelkers are embroiled in a lawsuit alleging construction negligence that could drag on for years.

The couple remember the night in 1999 their troubles began.

“The storm had come from the south, and the rain was beating against the southeast face of the house,” recalls Bill, a flooring product sales representative. “I went to bed, and at midnight I heard water- not just dripping, but running like there was a faucet on. I walked out the living room and by the main door to our patio it was just running water right through the wall. It was actually coming out of the mini blind. I couldn’t believe it. I went downstairs, and there was water coming directly below the entry down there as well. It wasn’t like a few drips- it was a huge puddle.”

The Kelkers assumed the problem stemmed from a leaky roof and called a repairman. But that proved to be so much wishful thinking. Bill remembers the message Pam, an interior designer, left him at work the next day after the roofing contractor left.

“She was in tears. She said, ‘You need to call right away. It’s not the roof. The water is probably coming in through the walls.’ It was horrible. The feeling was like, good God, what are we going to do?”

No one, it seemed, had the answer.

Not the four stucco companies they called. Not the window company.

“Everyone pointed the finger at someone else,” Bill says.

One repairman said they would need to seal the windows. Another told them they’d have to remove all the stucco. They heard repair estimates that started around $11,000 and climbed to $80,000.

* * *

Pam took her case to lawyer Scott F. Sullan of Vanatta, Sullan, Sandgrund & Sullan, P.C., the firm that successfully represented Highlands Ranch homeowners in a case involving expansive soils, as well as the recent Green Mountain suit in which homeowners sued developers after their homes were damaged in landslides.

“My firm is asked to look at between five and 15 homes per week involving complaints of shabby construction,” Sullan says. “We only take the cases that meet the Molly rule. The Molly rule is we imagine that Molly, my 14-year-old daughter, is standing next to us when we’re observing the problem. If Molly doesn’t say, ‘That’s terrible,’ we don’t take the case. What we’re interested in is helping people who really have truly broken homes.”

Such homes, Sullan says, are typically not the result of an unscrupulous builder but what he calls “A bright heart and empty head. People are making mistakes, and it might be the results of the economy and how busy these folks are.”

* * *

Sullan agreed to take the Kelkers’ case, and is seeking damages on their behalf to cover repairs, the diminution of the home’s value, emotional distress and other costs and expenses.

“These people aren’t in this to win the legal lottery,” Sullan says. “They’re in this to get their house fixed. People get trapped in a defective home. They can’t sell it, and they can’t use it to obtain financing. It’s broken, and now they need to fix it. Often the most compelling part of these cases is the emotional aspect of having your dream home fall apart. (They sense that) ‘This is the biggest investment of my life, and it’s going down the tubes,’ (is) a very frightening thing for people to have happen to them.”

* * *

Experts offer blue print for peace of mind

For most of us, our house is our biggest investment- financially and often emotionally. Yet unless we build it ourselves, it’s a venture we enter into almost blindly, trusting, as we must, in the builder, the engineers, the architects and a long list of others that the home is sound.

But how do we know, and what do we do when it’s not?

We asked John Kurowski, past president of The Homebuilders Association of Metropolitan Denver, and Scott Sullan, a lawyer with Vanatta, Sullan, Sandgrund & Sullan, P.C. , what homeowners should do if they have a construction concern.

John Kurowski, The Homebuilders Association of Metropolitan Denver

News: How can homeowners avoid winding up with a defective home?

Kurowski: First, when a homeowner purchases a home from a builder, they should take the opportunity to check the builder out. How long he’s been in the business; where he’s built. Talk to past homeowners, talk to city inspectors, and then they should make an informed decision.

The second thing is that sometimes defects are caused by a lack of maintenance, things homeowners ought to be doing beyond the warranty period. Homeowners should understand what their responsibilities are in maintaining a home and understand what the builder’s warranty consists of. They should clearly understand what they need to do to maintain their home. Everything needs maintenance. You need to check the drainage… If you have a gas furnace, you check the air filter. Check your gutters to make sure they’re not stuffed with leaves.

News: If you spot trouble, what should you do?

Kurowski: If a homeowner discovers a problem, the first thing they should do is contact the builder. The contact should be in writing. Send a letter and state the problem… and request a technician to take a look at that problem. A lot of builders have what they call a service request form in the warranty documents. If they don’t get a response, they should call. Builders who are responsible will try to react to those service requests.

News: Why wouldn’t a defect be spotted by a city inspector?

Kurowski: That’s a really broad question and it can’t be answered simply. A city inspector is required to do the best he can in looking at a whole variety of things. It’s impossible for him to check and find every little defect, just like it’s impossible for a builder to find every little defect. Let’s say there was a roof system applied and underneath the shingles a piece of paper was left… that’s technically a defect, but once the shingles are in place you can’t see it. Sometimes defects are just not able to be found with the naked eye. Sometimes it’s covered up by oversight or by accident.

News: What are the problems builders run into in resolving homeowner complaints?

Kurowski: What sometimes happens is that a homeowner has a problem in the house and he does not give the builder a reasonable opportunity to correct the problem, but files a suit. I don’t think that’s proper and I don’t think that’s reasonable. There are cases where builders have learned of a problem and went to correct it, but the homeowners wouldn’t let them.

News: Are builders feeling more vulnerable these days?

Kurowski: Yes. I think it’s a much more difficult and complex business today than it was five or 10 years ago. Part of that is related to the atmosphere in society where a person will think about suing as opposed to trying to solve the problem. That’s a general thing that has happened. The problem should not exist if you have a reasonable buyer and builder.

News: What about an independent buyer’s inspector?

Kurowski: The independent buyer’s inspector on a new home, in my opinion, is not somebody who will find anything more than the city inspector or the building supervisor or the homeowners themselves. Most builders will have a customer information walk-through and they will turn on the faucets and check the sinks, turn on the furnace… to be sure all those things work. That’s essentially what a home inspector does. A home inspector will not be an added aspect in the case where there’s a builder who has an informational walk-through. That’s part of what a homeowner should look for in a builder.

Lawyer Scott Sullan

News: How can homeowners avoid winding up in a defective home?

Sullan: That’s tough. Does “buyer beware” (apply) to the home? I’ve always said it doesn’t because homeowners don’t have the expertise to know what to look for or know who to hire- unless they are going to be expected to go out and hire a panoply of engineers to go over the home with a fine-tooth comb, and that’s just not realistic. They have to rely on the builder. They need to select a good, qualified builder who treats them fairly… The homeowner has to exercise their own gut instinct as to whether they’re dealing with a builder with integrity.

News: If you spot trouble, what should you do?

Sullan: Don’t ignore it. There are statutes of limitations that are very serious in Colorado. If you spot a problem, try to find an expert to give you advice. Don’t rely on the person who built the house or the subcontractor or the engineer. Those people have an interest in not finding a problem. Go outside the loop. If they find a problem, go out and get yourself a lawyer.

News: How long after a home is built does a homeowner have to recover damages?

Sullan: This is a complicated area. Generally you have six years from the date it was constructed. But you must file suit within two years of noticing the physical manifestation of the defect- even if that period is less than six years. A lot of people think writing a letter or putting it on their warranty checklist is enough. It’s not; you have to sue. If you discover a defect in the fifth or sixth year, you still have two years to sue. You can’t sit on your rights.

News: Why isn’t something like this spotted by the city inspector?

Sullan: City and county building inspectors are overwhelmed with work. We, as taxpayers, aren’t willing to pay enough taxes to have a home inspected in minute detail. We have to rely on the builders to know how to build homes correctly.

News: Does homeowner’s insurance cover these defects?

Sullan: Typically it does not cover construction defects. That’s because it’s directed at a different type of problem- (natural disasters), windstorms, etc.

News: What about an independent buyer’s inspector?

Sullan: Typically, he’s going to be paid a couple hundred dollars, and they normally check to see there isn’t an obvious problem. Beyond that, they are not going to pick up on any… defect that isn’t readily obvious.