How Does the Building Code Treat EIFS?

There are various types of building materials such as brick that are specifically delineated in the UCC and its sub-codes so that anyone wanting to know how to apply them can simply look at the UCC and the applicable sub-codes and find the requisite manner of installation. There are many other materials that are not specifically delineated in the UCC. That leads to the question of how does one apply or use those materials in a manner consistent with the building code?

How To Win The Battle and Lose The War

Before bringing suit in a construction litigation context, it is imperative that the plaintiff undertake a careful analysis of insurance coverage. Otherwise, the plaintiff can find itself in the unenviable position of spending hundreds of thousands of dollars in attorneys’ fees and expert fees over the course of three or four years of litigation, prevail after weeks or months of trial, only to find that there is no insurance coverage with which to pay the judgment that the plaintiff ultimately gets.

Exterior insulation and finish system (“EIFS”)

Exterior insulation and finish system (“EIFS”) has been around since the 1970’s. The older systems are known as “barrier” EIFS because they are designed to be face-sealed barriers to water penetration and do not incorporate any secondary drainage mechanism. Thus, any moisture that gets behind the barrier EIFS may be trapped inside the walls and can cause serious damage to sheathing, framing and other building components. In about 1997, EIFS manufacturers introduced drainage EIFS that incorporated a secondary drainage mechanism behind the EIFS. That would allow incidental moisture that gets behind the EIFS to drain out without harming sheathing and framing.

The drainable EIF systems were intended to stem the tide of a significant wave of litigation against EIFS manufacturers seeking recompense for damages caused by barrier EIFS. The manufacturer’s installation specifications and details generally have to be strictly complied with. Unfortunately, while the drainable EIF systems should work in theory, in practice, they are exceptionally difficult–if not impossible– to install. In our experience, drainable EIFS is typically misapplied in the field and winds up functioning as a barrier system. This, in turn, often causes severe damage to sheathing, framing and other building components, including mold.

Stark & Stark is handling many cases for condominium associations involving claims that drainable EIFS was not installed in accordance with manufacturer’s installation specifications, details and the building code. Three of these involve claims worth in excess of $6 million. One particular claim demonstrates the severe damages that can occur when the manufacturer’s installation specifications and details are not strictly complied with.

We are handling a complex case in which the decks on numerous condominium buildings were designed to be constructed using parallam beams. The beams were not wolmanized because it was assumed that the drainable EIFS would keep water away from the parallam beams. Unfortunately, the EIFS applicator failed to comply with the manufacturer’s specifications and details requiring that the deck/wall interface be properly flashed and have a half-inch joint with backer rod and sealant. In addition, there was supposed to be a drainage mechanism in the bottom of the EIFS cladding on the face of the EIFS clad beams that was not installed. As a result, water accumulated inside the EIFS that drenched the non-wolmanized parallam beams, essentially damaging them beyond repair. Moreover, cracks and other openings developed between the decks and the EIFS clad walls further damaging the sheathing and framing of the walls and the non-wolmanized parallam beams.

The Association’s engineers issued a warning to the association that no one should use their decks in the affected units. An emergency repair costing over $1 million was done to replace all of the damaged beams, to rebuild the decks and to reclad the decks with a functioning exterior cladding. The buildings have been extensively inspected and massive failures to install the EIFS have been documented in all of the buildings. Additional testing proved that there is an enormous amount of moisture inside most of the walls of all of the buildings. The damages are massive.

The point is that drainable EIFS is a product that has to be very carefully applied in strict compliance with manufacturer’s specifications and details if it is to have any chance of working as intended. In our experience, this is almost never done. Applicators are poorly trained and general contractors do not know what the manufacturer’s installation specifications and details are. As a result, the general contractors pay the applicators without realizing that the job has been badly done and that they are all going to be open to massive claims a few years later when moisture penetration produces severe damage.

UCIOA – Developer Transition and Arbitration

During the time the developer controls the board, it can force a transition and obtain a release through creation and manipulation of a transition committee. The developer can force that committee to do a construction study within only 120 days at the association’s expense. It is our view that a comprehensive transition study cannot be done within 120 days since defects and deficiencies often do not surface until after water has had several years to work its way into or out of walls or substrates and often it takes several freeze and thaw cycles for problems to appear. Nevertheless, a release can actually be signed by this transition committee which is arguably binding on the association, before the association is even controlled by the unitowners. The developer can force this committee into mediation with the AAA, and then arguably force the association into more “non-binding” arbitration as described above. As noted above, if the non- binding arbitration is unsuccessful, the association is back to the owner- approval of litigation again. All of these costs are borne by the non-developer owners.

Structural Failure of Concrete Balconies

Stark & Stark recently handled a construction litigation case for a Condominium Association which owned 5 large buildings. The Association was concerned about a large number of upper -floor balconies which were noticeably bowing in the middle. We brought in an experienced structural engineer who conducted an extensive examination of the balconies.

Our discovery in the case and our expert’s investigation showed that the balconies were concrete filigree slabs beneath a cast- in- place concrete topping slab. That means that the filigree slabs were fabricated off-site and shipped to the condominium. They were lowered into place by a crane, supported by heavy scaffolding and attached to the concrete walls with rebar and steel framing. Once they were lowered into place, the topping slab of concrete was poured over the entire filigree slab. (The filigree slab itself had been fabricated off-site in a steel frame that had a 4 inch lip to accommodate the poured topping slab added at the site).

In deposition testimony, the contractor who had installed the filigree slabs and poured the topping slab admitted that he had “cracked the scaffolding” for 2 hours only 2 days after the topping slab was poured. In other words, he had released the scaffolding for 2 hours and let the balconies settle before re-installing half of the scaffolding. Although the contractor testified that he was told to do this by his consulting engineer, the contractor never joined the consulting engineer as a party. The American Concrete Institute required that concrete cure for 28 days before the scaffolding was released. As a result of the wrongful release of the scaffolding, the balconies suffered structural failure because some of the rebar separated from the framing of the buildings. That caused the center of the balconies to “droop.” There was also consequential damage because the balconies were attached to buildings clad with exterior insulation and finish system. As the balconies pulled away from the exterior walls, they caused compression folds and cracks in the EIFS which allowed water to penetrate into the sheathing and framing.

The Association sued the general contractor and the concrete subcontractor for negligence, breach of contract and violation of the NJ Consumer Fraud Act. The Association settled the claim in a confidential settlement in the high six-figures.

Uniform Common Interest Ownership Act (UCIOA) – New Jersey

The proposed Uniform Common Interest Ownership Act (UCIOA) statute contains restrictions on any community association that wants to be able to sue a developer for construction defects and will have a devastating impact on our construction litigation practice.

On February 23, 2006 the Uniform Common Interest Ownership Act (UCIOA) was voted out of The Housing Committee in the Assembly and sent to the Assembly floor for a full vote. The bill, known as A-798, is a sweeping bill that for the first time in New Jersey history would enact one law governing issues affecting all community associations in the State, including condominiums, homeowners, and cooperatives. On March 2, 2006, the bill was passed by the New Jersey Assembly by a vote of 55-14, with 6 abstentions. The bill will now go to the Senate for its consideration.

While the Bill was intended, in part, as a measure that would be helpful to owners of units in condominiums, cooperatives and single family home communities governed by a homeowner’s association, the Bill imposes preconditions on community associations needing to bring suit for construction and design deficiencies. In pertinent part, before any association can start an action for construction defects, the association has to provide written notice to the developer of its causes of action. The developer has 30 days to investigate, and 60 days to test to see if it agrees with the association’s description of the nature and cause of the deficiency. 60 days after the testing, the developer must provide a settlement offer. Within 30 days, the association has to provide at least 2 dates for a meeting. If there is no settlement, either party can demand arbitration; however, the arbitration is “non-binding”. Either party can cut off the arbitration at any time or prolong it (even if it intends to reject the results of the arbitration after forcing the other side to spend tens or hundreds of thousands of dollars on expert fees and counsel fees). The Association still cannot sue unless half of its members vote in favor at a meeting, with a 33% quorum– unless a lower amount is authorized in the by-laws (which is not typically the case) and unless each owner (even in a 500 unit condominium) gets, via mail, at the Association’s cost, a copy of: (1) a statement of claims and defects; (2) the developer’s settlement offer; (3) the arbitrator’s findings (if any); (4) a statement that the suit may not recover enough money; (5) a statement of the estimated litigation costs; (6) a copy of the lawyer’s fee agreement; (7) and anything else the Association thinks is important.

Improper Installation of Roofing Materials in Condominiums

The application of roofing materials over sheathing and framing is the subject of much litigation in New Jersey. In most cases, the subcontractors doing the application of the roofing materials simply fail to follow manufacturer’s installation specifications and details. The general contractors fail to detect the deficiencies in the installation of the roofing materials, thereby contributing to the damages suffered by the condominium associations that ultimately wind up owning the buildings once transition of control of the common elements of the Association takes place. Irrespective of whether the subcontractor is ultimately liable to the general contractor/developer, it is the general contractor/developer who is liable to the condominium association in the first instance. The association can also make claims against the general contractor/developer. It makes no difference if the general contractor/developer or the subcontractor are insolvent or even bankrupt (or have simply disappeared). The insurance policies of both the general contractor/developer and the subcontractor(s) will all be on the line to pay or the damages suffered by the association.

In a recent case handled by Stark & Stark, a mid-sized condominium had multiple buildings finished with concrete, Mediterranean-style roof tiles. The roof tiles were installed by a subcontractor who did the work without following the manufacturer’s installation specifications. The general contractor/developer did not even have the manufacturer’s installation specifications and details. As a result, the subcontractor installed the tiles on battens that were not weeped or pressure-treated. The general contractor did not notice the error because it did not have the manufacturer’s specifications and because the general contractor/developer thought it was appropriate to inspect the roofs from the ground (despite the fact that the roofs were over 30 feet off the ground). The fabric paper was also lapped backwards and numerous roof and kick-out flashings were missing. Since the tiles covered the roof paper and the battens and the general contractor/developer was unfamiliar with kick-out flashings, the deficiencies went undetected for years. Finally, after years of leaks, the Association hired experienced engineers to open the roofs and determine the cause of the problem. In ensuing litigation, the Association recovered millions of dollars for the roof and related problems with the exterior insulation and finish system on the buildings.

Technorati Tags: New Jersey : Condo : Community Association :

Environmental Factors Must Be Considered In The Design of Fire Suppression Systems

As a follow up to an earlier post, fire suppression systems must be carefully designed and installed in order to deal with environmental factors that may affect the viability of those systems. In one recent case that Stark & Stark is handling, a renowned fire suppression system expert designed a fire suppression system for a condominium that is located on the Jersey Shore. The sprinkler heads are not salt-air rated. This is a clear violation of NFPA 13, section 3-2.6(17) which requires that such heads be salt-air rated. Since the heads and fittings are not corrosion-resistant, the heads and the escutcheon plates that cover the heads are rusting. As a result, all of the hundreds of exterior sprinkler system heads and escutcheons now need to be replaced at enormous cost.

In this same case, the engineer designed a second fire suppression system for a different mid-rise building in the same condominium located on the Jersey Shore. The system was not designed to use any anti-freeze. The CPVC pipes ran up the inside of an exterior wall that was uninsulated. The pipes connected to metal pipes that were connected through an outside wall onto dozens of balconies where exterior sprinkler heads were installed. The sub-freezing winter temperatures have wreaked havoc with this system. The water inside the CPVC pipes froze and the pipes cracked. Once the weather warmed up and the temperature rose above freezing, the water inside the CPVC pipes slowly leaked out units and the below were flooded. Because the leaks occurred slowly, the alarm system for the fire suppression system did not trigger. The damage continued undetected for weeks because these units are not generally occupied in the winter months. The damage to the building and the interiors of the affected units was severe. The system had to be converted to an anti-freeze system at a cost in excess of $500,000, not including the enormous damage done to the sheathing, framing , sheetrock and interiors of many units flooded when these pipes froze, burst and then thawed.

Technorati Tags: New Jersey : Condo : Community Association

Fire Suppression Systems Improperly Filled With Glycol Results in Liability

Many fire suppression systems used in condominiums are designed for use with a mix of water and anti-freeze. It is critical that the correct anti-freeze be used to fill the system. The National Fire Protection Association (NFPA) Code governs fire suppression systems and prohibits the use of glycols as anti-freeze in listed fire suppression sprinklers and fittings. NFPA section A-4-5.2 requires that only glycerin anti-freeze be used in such systems. Manufacturers of the pipes used in such systems also require that only glycerin be used because some glycols–such as ethylene glycol–can cause chemical breakdown of the pipes. Over time, microscopic cracks will begin to develop inside the pipes that will eventually lead to leaks or catastrophic failures.

Some engineers will opine that even though the use of glycols is banned by the NFPA, a 50% glycol solution can be used because the plastic pipes are chemically rated to handle the stresses caused by use of glycols. However, you should have an experienced engineer check with the manufacturer of the pipes in any such system and with the manufacturer of the other components in such a system because they will likely void their warranties if glycols are used rather than glycerin.

Recently, the Summer Hill Condominium Association in Delran settled a case for $4.5 million in which glycols were used in fire suppression systems that were designed to be filled with a 50% glycerin solution.

Blog Categories