I Won the [Case], By a Lot!

Dirk

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Seems like we have a lot of court cases flying around of late, here's another.

Since moving into my house, I spent a lot of time in my attic running all sorts of wiring. Ethernet, EasyTouch/ScreenLogic control wires, video wiring, audio wiring, door bell wiring, Romex, you name it. All the while I thought the blown-in attic insulation was a little thin, but it wasn't until one of my last runs, a Cat 6 ethernet cable for a cam on the far side of my home, that I realized how bad the insulation was. Above the room I had always had trouble keeping warm/cool enough, I was staring at the ceiling's sheetrock. The insulation was completely missing. I realized then that the entire attic's insulation was never installed correctly. It started out thick enough at the end nearest the access hatch, but gradually sloped to completely missing at the other end of the house.

The next day I contacted the original builder about the missing insulation and was told my concern would get forwarded to the responsible party.

Well, about seven months later, after multiple attempts to contact and negotiate with the contractor, through phone, email, certified letters and ultimately Small Claims Court, I received the judgement from the local court. Judgement for the plaintiff! Three weeks after that, just a couple weeks ago, I received payment in full from the defendant. Won and done!

Here's the deets.

My discovery occurred just a few months before 10 years from the date of completion of the house. I figured that would make it a long shot, and in fact the builder's position had been had I come to them a few years after the house was built, they would have fixed it. But according to them, anything could have happened in 10 years to the insulation, so they didn't feel responsible, and refused the fix. It's still a mystery how they could have explained what might have happened to 50% of a home's insulation, but that was their argument. I didn't agree. To complicate matters even more, I was not the original owner, so I had to prove that (1) nothing happened to the insulation on my watch, and (2) nothing happened to it while the previous owners lived their and (3) that it had been installed incorrectly.

First, I found out (through Google research), that in spite of the long-ago-expired one year warranty offered the original owners, the contractor is liable for defects in construction for more years than that. State law. It gets tricky, because there are different statutes of limitation. If the defect is obvious, the builder is responsible for the fix for only a few years. But if the defect could not reasonably be seen, then the statute of limitation is 10 years!! That meant I had a shot, but I was cutting it close. Because of COVID and the limited number of weeks I had before the 10-year deadline, I decided to forgo the CA Contractors Board complaint mechanism (which is how I won a previous case), and go straight to court. I had to file my case before the 10-year deadline. I threatened the contractor with both (complaint and lawsuit), to no avail. So I filed my case, in time.

I also had to accomplish many other things before the deadline. Prior to the lawsuit filing, I followed my own advice that I've given here many times. I sent certified letters to the Contractor, to alert him to the problem, what I wanted done, and how long he had to do it. He ignored several of those letters. They each included the estimate I had to get from a licensed insulation contractor for the cost of the fix. So that covered the "expert witness" aspect I needed. Once a very reasonable amount of time elapsed without the original builder performing, I had the insulation fixed by the contractor that gave me the bid. Then it was just a matter of waiting for my court date, which took forever. But in the meantime I collected evidence: pictures, documents, diagrams and letters. Pages and pages of evidence. Two of the most damning pieces: a letter from the previous owners stating nothing happened to the insulation during their ownership, and a picture and statement from my neighbor about his attic's insulation, which was also partly missing. Dun, dun, duuunnn. Clearly the original subcontractor had a bad day. I had evidence that the same guy had done both our attics on the same day! There was no logical explanation for the missing insulation other than it was never there to begin with.

So I wasn't worried about proof, I was more worried about the loopholes the defendant might find to snake out of the case. And this is where what I learned during my previous suit came back to help me. And why my mantra: "get everything in writing" paid off again. Contractors are not too bright in matters of the law. They're supposed to know and follow state contractor laws, but they're generally not very good at either! The letters the builder sent me (in both my suits) provided much of the evidence I needed. In this case, the builder's letters established the date of completion (something I needed to prove for the 10 year statute of limitations to be valid), and the letters identified him as the responsible party, which I probably couldn't have done on my own. He also hung himself in court, because he answered several direct questions from the judge that made my case, which he could have just answered otherwise had he been a little smarter, or less honest.

The take-away: you might be intimidated to get involved in a court case because of what you don't know about the law, but it's virtually a guarantee that a typical contractor will know even less!

Some other interesting tidbits: the case was tried virtually, on a Zoom meeting. That was weird. Especially when I lost my internet connection, not once but twice during my hearing! But the court was sympathetic to technical glitches, and we would start again from whatever was missed. Also weird was having to submit all my evidence beforehand, to not only the judge, but also to the defendant!! Not typically done like that in Small Claims, but that is the new order of things during a pandemic. I really didn't want to give the defendant all my evidence ahead of time, so this was my work-around: I prepared two packets, one for the court, another for the defendant. Same evidence, but the court's version contained notes in the margins of my documents that explained each exhibit, my entire case in essence. So the defendant could not prepare arguments against my logic ahead of time, but could not complain that he didn't receive all the exhibits. And it was a good thing I did it that way. Turns out, the court cannot view a PDF version of the evidence on a computer, they have to print everything out. So the judge had a 1" thick stack of papers after printing out my mountain of evidence. So much, that she couldn't sort it all out in the hearing, there were too many pages for her to find anything I was referring to, so she stated almost immediately that she would hear testimony and review the evidence afterwards, and then render her verdict later, by mail. I didn't have enough time to go through everything, so I suspect my case was won by her review of my footnotes, which she would have found later because I made them very obvious.

The builder was completely unprepared, even after getting my evidence. I delivered it to him at the absolute last minute allowed, as I didn't want to give him more time than I had to to come up with more lies about his role in all this. He did poorly in front of the judge, and even perjured himself a couple times. I got the impression the judge could tell he was lying. At one point I flat out told her he was lying! His biggest mistake was when she asked him point blank: if proof was able to show that the insulation was indeed missing since the house was built, should he be responsible for fixing it. To which he replied "Yes." Dope. That's when he should have lied!! I knew at that point my case was won. He later backtracked and lied a few more times, but by then it was too late. More to the point, as I mentioned, these guys are not too bright when it comes to the law, they're not any less intimidated in court then you or I might be!

I had to sweat it out a few weeks before the judgement showed up in the mail, and a few more weeks after that before the check showed up. But I ended up getting both. I had intended to follow up with a formal complaint to the Contractor's Board, because while they are mostly powerless to do much directly to a Contractor, they do have a major strong arm tactic. If a consumer submits a court judgement along with a complaint, and the Contractor refuses to pay, the Board can suspend the Contractor's license until he does pay. Which was my ultimate leverage. I was fully expecting him to not pay, but then he did! I never had to file the complaint.

So... we get lots and lots of stories here about contractors that either do shoddy work or won't stand behind their work (or both). This seems to me to be an ever-increasing trend. Pride in workmanship is fading. Ethics are fading. Honor is fading. And I believe that is in part because we consumers allow it. We allow it when we give in, give up, and accept bad work, or shy away from confronting and/or going after a bad contractor. My successful tally won't turn the industry around. It won't even turn these two jerks around. But if more of us demanded better quality, demanded contractors adhere to the law, and took them to court when they fail to deliver either, then maybe those contractors would tend to do better and take advantage of us a little less.

Whoa, got a little dizzy there and almost fell off my soap box!

To conclude, I once advised someone here to think twice about going after $1800. All the letters and the negotiating and the arguing and the prep and the hearing are all extremely stressful, and you have to weigh a possible win against what that will cost you in terms of mental health! I almost gave up this one myself, as it was over only about $2K. But the deeper in I got, the madder I got, the less I wanted to give up. I stuck it out, endured the stress, and now find that I am very glad I did. I'm quite proud of myself, in fact. To know I didn't back down, and held a jerk accountable, feels good. Way better than the temporary relief I might have gotten had I given up.

And to be clear, I don't think this guy is a jerk because the insulation job wasn't done right. That was not even really his doing, just a lame sub whose work the builder failed to double check. He's a jerk because he tried to ignore me, then lied, then provided misleading evidence, didn't know or follow the law, tried to dodge court papers service, and generally did everything he could to avoid his legal and ethical responsibilities. Sure, the $2K felt good, but it felt better knowing this guy didn't get away with any of that, not this time...
 
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mguzzy

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Dirk Great story!
Also weird was having to submit all my evidence beforehand, to not only the judge, but also to the defendant!! Not typically done like that in Small Claims, but that is the new order of things during a pandemic.
You must have filed in Superior court. That is the way discovery is done in "Big boys" court. In Small Claims, discovery is exchanged right before the hearing.

As a small biz owner I have had a few dealings in Small Claims and Superior court to get paid for jobs... I was on the other side. Its not uncommon to provide evidence with annotated information to the judge. It really helps them understand what they are looking at. I bet that made the case for you more than anything. You have to remember they are looking at reams of evidence for lots of different cases. The easier you can make it on them will help your case.
 

Dirk

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That was my strategy: make it easy for the judge to see and understand my talking points. I lucked out, as until I couldn't, I had been assuming I'd be able to go over every detail in the hearing, which didn't end up happening. If I hadn't added the notes, I probably would have lost, as the mass of evidence would have been incoherent to the judge.

No, this was small claims, but because of COVID, and the virtual hearing, I had to submit evidence a week ahead of time, via email, so that the defendant was sure to have his copies come hearing time. That was nerve racking, because I wanted to be able to catch the defendant off guard, without giving him the opportunity to come up with plausible excuses for my evidence. Instead, he had a week to do so. So in that respect, it was more like discovery. But without my footnotes, the defendant probably couldn't figure out where I was going with much of my evidence. Just as likely, he probably knew all along that he was going to lose, he just did everything he could, right up until the end, to make it as difficult for me as possible. Hoping either that I'd give up before the hearing, or some miracle would bail him out during the hearing.
 

mguzzy

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Ok.. got it. It WAS Small Claims court. And probably because you provided SO much information, it meant the Judge had to review it later. I'm told by my attorney friends that they provide detailed information in the pleadings and declarations, but keep the information more to the point when in trial. You only have a small window to make your point, even more so in Small Claims.. but well done!
 
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Dirk

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Yep. I underestimated the importance of annotating the exhibits, and overestimated what I could get done in the hearing. Small claims judges want to keep it moving and then go over everything later, at their leisure. I'll remember that if there is a next time, and recommend that MO to others. Like painting your house, a successful lawsuit is all about the prep.
 

BowserB

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Wow! Glad it worked out for you, Dirk. A couple of questions (since your original post had no comments in the margins). Was the $1,800 a quote from an insulation contractor, or did you actually get the work done. I guess I'm wondering how long you lived in the house in that condition before it was fixed. I don't know the climate where you are either. How cold is winter? How hot is summer?

I don't know how the laws in Texas and California differ in cases like this...or what even the Texas law would be, for that matter. I'm surprised to learn that your lawsuit could go through that many levels of parties. For example, you bought the house from the previous owner, so I would have thought your action would have to be against them. They would have to go against their seller, who as original purchaser would go against the builder, who would finally sue his subcontractor. You went right through all that.

One other lesson here, in case it's necessary. A qualified inspector is an important part of a home purchase--either new or resale. A good inspector would have found that insulation problem before you closed on the house and had the $1,800 off the purchase price, not to mention other things he might have found. When I sold my house three years ago, the buyer's inspector rounded up a laundry list of things. In my case, some were borderline impossible to fix, all were minor, and a few were a matter of changes in building codes since we built/bought the house 25 years earlier. We had the option of fixing them or knocking $2,500 off the selling price, and we chose the latter. For the new house we bought, our real estate agent hired the inspector, and he was really good. In this case, we didn't offer a price reduction but rather required the flaws be fixed.

Anyway, congrats on winning. Enjoy your new cooler or warmer home and lower utility bills.
 

cowboycasey

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That is awesome, great job...

My fiberglass insulation was also put in at the very bare minimum and was so fluffed up that 2 months later it was half that and probably r15... (at least they hit the whole house, can't believe they missed the back rooms in yours for 3 years I could not figure out why it cost me so much to heat and cool my house.... I blew in 12 to 18 inches and my house stays nice and cool now :)

Most do not know as I did not also, fiberglass insulation is good for hot climates but in cold climates it is half the R value, so an R30 fiberglass is R15 in the winter... Cost me 500 dollars in heat the first Jan I was here o_O :eek: :shock:

This is before I blew in more insulation and you can see the raised platform I built so I can still walk up there..
2018-10-07 14.47.19.jpg


This is afterwards with Major money savings
2018-10-22 14.37.11.jpg2018-10-22 14.36.06.jpg
 

MyAZPool

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@Dirk
Nice job sticking with your principles Dirk. :thumleft:
Congrats on the big WIN!!
This will be an inspiration to others who may get hosed by unscrupulous contractors!
r.
 
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Dirk

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Dirk! You did it! I am very proud of you and thankful you are willing to step in and help others dealing with this kind of stuff. What is neat is YOU did it on your own! Well done sir!!!

Did the addition of the insulation help that room?

Will your neighbors go after him as well?
The insulation definitely helped! Though the bigger test will be this winter as it gets colder. I had the garage done at the same time I had the rest of the house fixed. It was never insulated. It was much cooler this past summer.

No, the neighbor didn't get his attic fixed, and now the 10 years is up for him, so he won't be able to. His was not quite as bad as mine. But it's a good example of what often happens. Even though his case would have been a slam dunk, he didn't want to bother with a lawsuit. So he let the original builder off the hook. That same builder has caused many other issues for homeowners throughout the years. He just keeps getting away with it...
 
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Dirk

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Wow! Glad it worked out for you, Dirk. A couple of questions (since your original post had no comments in the margins). Was the $1,800 a quote from an insulation contractor, or did you actually get the work done. I guess I'm wondering how long you lived in the house in that condition before it was fixed. I don't know the climate where you are either. How cold is winter? How hot is summer?
Thanks Bill! Winters can get down to 20° at night. Summers up to 110°+. So insulation is pretty important around here. The $1800 figure was referring to another TFPers dilemma. The estimate to fix my attic was $1925. I had a couple of guys give me bids when I realized the original builder was not going to fix it. I waited about a month, because legally I had to give the builder a reasonable amount of time to perform. But after that I was OK to proceed. So I called in the insulator and he fixed the attic. That occurred well before the lawsuit. I won my previous case like that too, paying for the fix and suing for reimbursement later. So I didn't have to go too long after discovering the missing insulation to get the fix, but I had lived in the house before that for five years, so the one room in particular was always very cold in the winter.

Who knows how much more I spent on HVAC during those five years because of the missing insulation. Glad you asked! Actually, I do. I found an energy calculator on the US Dept of Energy's website that allowed me to come up with a number for the extra cost. It was about $66 per year. I included that in my lawsuit, but the judge did not award me that. In small claims the judge doesn't explain her decision, you just get the judgement. So I'll never know why I didn't get that amount back. I also added $500 for punitive damages. Those are usually impossible to get. I was claiming fraud, because the builder lied to get out of fixing the attic, but fraud is very hard to prove. I didn't, and didn't get the 5 bills. I did get back all my court cost, and like an extra $50, which also went unexplained, so maybe that was some of my energy costs? No way to know, now. So the judgement was for just over $2K.

I don't know how the laws in Texas and California differ in cases like this...or what even the Texas law would be, for that matter. I'm surprised to learn that your lawsuit could go through that many levels of parties. For example, you bought the house from the previous owner, so I would have thought your action would have to be against them. They would have to go against their seller, who as original purchaser would go against the builder, who would finally sue his subcontractor. You went right through all that.
Yep, and when I mentioned the loopholes that's exactly what I was most nervous about the whole time leading up to the hearing. I thought for sure I was going to get tripped up because I was not the original owner. The judge did in fact first ask me why I wasn't suing the original insulation contractor. I was worried about that, too. And when she asked I thought I was done for. But I had thought of that ahead of time and was prepared with a long shot answer, the ol' Apple defense. I responded: "If my Apple iPhone stops working, I wouldn't try to go after the transistor manufacturer, I'd go back to Apple, the company that sells the phone." I guess that worked. The defendant didn't think of trying the subcontractor excuse. He should have. Instead, when asked if he should be responsible for the fix should it be shown that the insulation was missing from day one, he replied "Yes." That floored me. It confirmed two things: that he wasn't too bright, and that he knew all along that he should have fixed that insulation for me, which confirmed (to me) that he was just being a jerk about it.


One other lesson here, in case it's necessary. A qualified inspector is an important part of a home purchase--either new or resale. A good inspector would have found that insulation problem before you closed on the house and had the $1,800 off the purchase price, not to mention other things he might have found. When I sold my house three years ago, the buyer's inspector rounded up a laundry list of things. In my case, some were borderline impossible to fix, all were minor, and a few were a matter of changes in building codes since we built/bought the house 25 years earlier. We had the option of fixing them or knocking $2,500 off the selling price, and we chose the latter. For the new house we bought, our real estate agent hired the inspector, and he was really good. In this case, we didn't offer a price reduction but rather required the flaws be fixed.

Anyway, congrats on winning. Enjoy your new cooler or warmer home and lower utility bills.
I had my home inspected. And he claimed he walked that attic, but apparently he never did. It was clearly obvious about half way down the attic that the insulation was missing. So he lied to me, too. That's the guy that should have paid me, but CA law lets home inspectors off the hook after four years. Plus, the inspector's contract reduced CA's statute of limitations down to two years. I'm not sure that was legal, but I signed it, and it had been five years anyway, so I couldn't go down that road.

That same inspector, also referred to me by my realtor, missed quite a few things, some of which were into thousands of dollars. I was with him during the inspection, and he seemed very competent. But he just missed stuff. I was able to reduce the seller's asking price by only $500 after all was said and done. Just a bit less than the cost of the inspection, so he kinda paid for himself. Most all of the expenses I later had to pay due to his oversight were pool-related. My purchase price was on par with surrounding comps that didn't have a pool, so I basically got about $100K in pool and landscaping for free, so in the grand scheme of things I came out way ahead! (That's what I needed to tell myself to rationalize the inept inspection I fell for!) But you're right, Bill, a home inspection is so important when buying a house! I hope to never have to go through that again, but if I do I'll take much better care in selecting an inspector.

So yes, I had a cooler summer and I'm looking forward to a warmer winter!
 
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Dirk

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@Dirk
Nice job sticking with your principles Dirk. :thumleft:
Congrats on the big WIN!!
This will be an inspiration to others who may get hosed by unscrupulous contractors!
r.
Thanks. Yes I hope more of us go after contractors that deserve it. We'd all be better off. So would they. How's it go?

"The only thing necessary for the triumph [of evil] is for good men to do nothing." -- Edmund Burke.

Whoa! Teetering soap box again. Oh, I see the problem. It's not put together very well. Hey, who built this crummy soap box anyway?! Why-yi-aughta sue somebody!! :rant:
 
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Dirk

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That is awesome, great job...

My fiberglass insulation was also put in at the very bare minimum and was so fluffed up that 2 months later it was half that and probably r15... (at least they hit the whole house, can't believe they missed the back rooms in yours for 3 years I could not figure out why it cost me so much to heat and cool my house.... I blew in 12 to 18 inches and my house stays nice and cool now :)

Most do not know as I did not also, fiberglass insulation is good for hot climates but in cold climates it is half the R value, so an R30 fiberglass is R15 in the winter... Cost me 500 dollars in heat the first Jan I was here o_O :eek: :shock:

This is before I blew in more insulation and you can see the raised platform I built so I can still walk up there..
Thanks Casey. Yep, my before and afters were much the same, though mine is the paper fiber type. I too could see the tops of ceiling joists. Which was great for walking around on, but not so great for the room temps! I love the platforms. I wish I had thought of that. But I'm pretty sure I've already done what needs to be done up there. If I ever have to go back up, oh well...

I actually didn't even go back up to check on the fix. He claims he blew in a few extra inches for me, so I should now be well above R30. I have 90' of attic, so to view the whole thing I'd have to trample through all that "fresh snow." Which is why, I'm sure, the attic never got inspected well enough in the first place. It would have been counter productive to make sure it was all there, while ruining it at the same time!

I contend that the original culprit, the insulation sub, knew full well that he shorted the house, but also knew the city inspector wouldn't ever see that. Which is why he blew in 10" around the attic access hatch, and shorted the area 90' away. At first I thought it was a scam by the sub, to eek out extra profit, but the guy I hired for the fix didn't think so. He thought that the guy either didn't have enough insulation on his truck that day, or didn't have a long enough hose. The former would explain why my neighbor's house was also shy of R30. The sub probably split what he had between the two houses.
 
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Dirk

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I’m assuming this whole thing worked out for the better. Yay Dirk!! (Sorry, I fell asleep halfway through your first post)
It did, thanks. But you missed the best part of the story... where the judge fell asleep halfway through my testimony!! Sheesh, I bet Tolstoy didn't have to put up with this kind of abuse!
 

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I’ve completely lost faith in the home building industry; it should just be taken as a given that any home you purchase nowadays from a large builder will be riddled with defects and cut-corners. County inspectors are useless for the most part and building codes will be violated as much as possible to save the builder money. As others have stated, independent and thorough inspection by a paid and unbiased 3rd party inspector that you hire is all you can do. If you have to spend $1000 on them to comb through the house for an entire day (or two!), then so be it.

We purchased our home (3rd owner) in 2012 that was built during ‘05/‘06 housing madness for a steep discount. The shoddy workmanship was covered up nicely and I feel sorry for all of the original owners in our community because they were sold very high priced “custom homes” (that word “custom” is such a joke) and then the market completely crashed. Most of the original owners (that stayed) are still upside down in their mortgages and will never recover the $100,000’s of dollars in lost equity. Every time I do some small DIY repair I can see how the builder chose to do the lowest quality job...it’s just sad. My brother recently purchased a home in St Louis that was built during the early 90’s. While some of the features in the house are a bit dated, I consider his house to be much higher quality. Even nearly 30 years later, much of the original equipment and structure of the home is working just fine.

Some day I will go back to being a renter and be very happy for it ...
 
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Dirk

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Ha, as a landlord I often envy my tenants! There's something to be said for letting someone else deal with the headache of ownership!

There are houses just down my street that were built by a snake that severely short-cutted the construction process. One has remained empty for years, it's so bad. And city inspectors were, are, complicit. They're not doing their job well enough. Not by a long shot. True, it's not their fault per se that the contractor is not doing a high quality job, but unless contractors are kept honest, by inspectors, they'll continue to shave quality more and more, often well below code requirements. And that same builder, even while the tract down the street is in litigation, is in the middle of another development a mile away! The city disavowed the bad construction down the street, while awarding the builder by granting more permits. Always comes back to money, one way or another.

My home's bones are pretty good. And I've already fixed or replaced most of the cheap crud the builder used (electrical and plumbing fixtures, appliances, etc). So I'll be OK. The home's value continues to rise, so I'm in the black. But that has more to do with the neighborhood I'm in than anything else.

I don't know, how do you encourage pride? Ethics? Honor? We seem to be in a national crisis in that regard, and it's not just the construction industry... It's rampant... Ultimately, I'm loathe to admit, it comes back on us, and what we allow...
 

Dirk

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Too true. I'm fortunate in that I can do a lot of what I need done myself, skills learned as a General Contractor (mostly home repair stuff). But others can't, or don't have the time. I'll be there soon enough when I get too old. Not sure what I'll do at that point. My only strategy is to do all I can to my house now, while I can. What I can't do, I oversee like a hawk!

Hmmm, business idea...

Handyman Consultant, Inc.
We don't do the work, we just make sure it gets done right!
 

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29,838
Northern NJ
Pool Size
35000
Surface
Plaster
Chlorine
Salt Water Generator
SWG Type
Pentair Intellichlor IC-60
Too true. I'm fortunate in that I can do a lot of what I need done myself, skills learned as a General Contractor (mostly home repair stuff). But others can't, or don't have the time. I'll be there soon enough when I get too old. Not sure what I'll do at that point. My only strategy is to do all I can to my house now, while I can. What I can't do, I oversee like a hawk!

Hmmm, business idea...

Handyman Consultant, Inc.
We don't do the work, we just make sure it gets done right!

Yeah, someday you will be senior enough in your house to move up to management.
 

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