Responsibility of PB?

[custix]

I had a pool built recently, and the PB damaged part of my neighbor's property in the process. They also damaged my mailbox and another part of my property.

The access to the backyard is close to my property line, and, across that line, were movable concrete borders that are in my neighbor's yard. The PB damaged a majority of the borders and are cracked as a result.

The PB is denying that is their responsibility. They are saying that it is part of "landscaping" that is listed as "owner" responsibility. I dispute that, as they are movable and could have been easily moved prior to construction, not even on my property, and are not really a part of landscaping in my view.

Am I right in holding the PB responsible for this? They are correcting the other damage but contend this is not their responsibility.

 

[ajw22]

Welcome to TFP.

What is the cost to repair or replace what you are arguing about?

Show us some pics of it.

 

[custix]

I think it's a few hundred dollars or so.

Pic of some of the damage:

 

[SchubeyDew]

I haven’t gotten as far as signing contracts with the pool builders yet, but I would look to see how it is spelled out in the contract. Unfortunately for you, think this would fall under “Landscaping,” regardless of whether it is moveable. Common sense would dictate that they move it rather than destroy it, but they probably don’t care since excavating crew is a sub contractor and it’s my understanding that excavating and gunite crews are in high demand in Florida right now.

 

[custix]

I haven’t gotten as far as signing contracts with the pool builders yet, but I would look to see how it is spelled out in the contract. Unfortunately for you, think this would fall under “Landscaping,” regardless of whether it is moveable. Common sense would dictate that they move it rather than destroy it, but they probably don’t care since excavating crew is a sub contractor and it’s my understanding that excavating and gunite crews are in high demand in Florida right now.

Landscaping is spelled out as "trees, shrubs, and grass". I would dispute this as "landscaping" since it is none of those things, can be moved out of the way like anything else that would otherwise be in the way, can be foreseen, and isn't even on my property. They had a survey and know where the property lines are.

Who do you think would be responsible for this?

 

[SchubeyDew]

Landscaping is spelled out as "trees, shrubs, and grass". I would dispute this as "landscaping" since it is none of those things, can be moved out of the way like anything else that would otherwise be in the way, can be foreseen, and isn't even on my property. They had a survey and know where the property lines are.

Who do you think would be responsible for this?

If they spell out the landscaping that way and don’t have a catch all like “Other miscellaneous” then I agree it is their responsibility. The only other thing to look at is if your neighbor had to sign a waiver of some sort. My home is 10’ from my neighbor’s, so all the pool builders require neighbor’s permission. If there’s nothing there, then I agree that it is their responsibility.

 

[custix]

If they spell out the landscaping that way and don’t have a catch all like “Other miscellaneous” then I agree it is their responsibility. The only other thing to look at is if your neighbor had to sign a waiver of some sort. My home is 10’ from my neighbor’s, so all the pool builders require neighbor’s permission. If there’s nothing there, then I agree that it is their responsibility.

"Landscaping" is stated to "include" trees, shrubs, and grass. It isn't specifically included or excluded. And there definitely was no waiver they signed. I wish they had done that, since this would have probably come up or at least would not come back to me or the PB legally.

 

[SchubeyDew]

That doesn’t sound promising. These companies are getting better and better at writing these contracts to give themselves zero responsibility. I hope you can get them to cover it.

 

[Dirk]

Uh, way off. (IMO). The contract is not a factor, because it is with you, and not the neighbor. Signed by you, not the neighbor. No clause in the contract with you can exempt the contractor from responsibility for damaging someone else's property. It doesn't matter that the property is adjacent. It doesn't matter that it happened while they were building your pool.

It's more in line with him hitting a car down the street. Or accidentally driving through someone else's yard around the corner. You wouldn't be liable for any of that damage, right? Your neighbor's yard is not your property.

Technically, you are not even involved. They caused property damage to a third party. They are responsible for it. Now collecting for that damage is another matter. You can't even withhold the cost of the repair from what you own them, because this is between the contractor and your neighbor. You haven't been wronged. You can't go after the PB on the neighbor's behalf. The neighbor would have to pursue the cost of repair directly with your PB. Which, of course, is not going to sit well with your neighbor. So while your contractor is liable for the repair, paying for it yourself might be better than causing ill feelings from the neighbor, who, let's face it, has already been put out by your project. So while you shouldn't have to pay for the damage, you might have to.

It's despicable behavior by the PB not to stand up. But that is the world in which we now live...

Your mailbox is also the PB's responsibility. That is definitely not landscaping. You didn't describe what else of yours they damaged, so I can't comment on that.

 

[setsailsoon]

c,

There are a lot of technicalities here. Your neighbor may be able to claim directly against your contractor. It wouldn't hurt for him to make a claim. For damage to common property most HOA docs I'm familiar with make the owner responsible for any damage to common property caused by his contractor but not sure about other owner's property. Certainly none of this would be worth lawyering about. If it were me here's what I'd do:

• Some of the cracks in the border brick look old to me. Your neighbor may want to file a claim in writing against the PB.
• If the PB won't pay for the damage to the brick, pay for the neighbor's damage. PB will never be back but you have to deal with neighbor as long as you're there.

Chris

 

[ajw22]

What does the neighbor say?

What does the neighbor want?

As Chris observed those blocks look fairly old and worn. In insurance there is the concept of Betterment. If they were 20 year old blocks that were damaged you would be compensated to replace with equivalent not new materials. The costs of getting better then existing are paid for by the homeowner.

 

[YippeeSkippy]

How difficult would it be for you to go out and buy a couple replacement garden edge bricks? Good neighbors and all that... ? Or will just correcting the alignment of them? And some grass seed?

Am I missing something, what I see is pretty small stuff??

Maddie

 

[sktn77a]

If it's just a small job, do it yourself - it's not worth the ulcers! If its a big job, then your neighbor has 3 choices - claim on his insurance, claim on you (your insurance), claim on the pool builder (his insurance). If the value is less than the deductible, your neighbor can sue you or your pool builder in small claims court. Doesn't matter what the builders contract with you says, this is a third party liability issue.

 

[Dirk]

The OP needs to draft a demand letter to the PB on behalf of the neighbor, then the neighbor signs it. Stating:
- damage done and on what date
- the remedy: PB fixes within 10 days (or 14, whatever)
- consequences if not fixed by deadline:
- neighbor will hire someone else to fix and send PB the bill
- non-payment of invoice will result in:
- neighbor will sue
- neighbor will file complaint with FL contractors state license board
- neighbor will file complaint with PB's bond company (if those are required in FL)

The demand letter starts the clock (for performance by the PB), and gives the PB opportunity to fix the problem. That is usually mandatory for a court case or a license complaint. That also sends the message to the PB that his refusal to fix the damage is not acceptable. You have to identify the problem and the remedy and allow the PB to perform. Once he doesn't, then you're free to pursue other remedies.

Hopefully the PB will see avoiding the consequences as enough incentive to fix the problem. The demand letter would also send the message to the PB that this isn't going to go away, and his argument that this is a landscaping issue is irrelevant, and not going to work. The letter could mention that damage to the neighbor's property is not covered by the contract with the pool owner.

If the concrete border is still available, and is only a few hundred dollars, then all of the above is moot. Just fix it and keep the neighbor happy. It's not worth the stress, or the time to write letters, and file complaints, etc.


Now there is an end run to this. The PB is banking on the fact that nobody is going to go through the trouble of suing him for a few hundred bucks. So flip it. Get the border fixed (after the demand letter deadline expires) and deduct the cost of the fix from what he is owed. The OP doesn't have the right to do that, as he is not the party that has been damaged. But in order to collect, the PB will now have to sue the OP, and he might not bother. And the OP and the neighbor "win."

Now if the PB is an even bigger jerk than he so far appears, he might sue, so then you pay him and then the neighbor can sue or you can let it go, no worse off. Now if the PB threatens to lien the OP's property, that's when the OP probably should give up and let it go. That is a can of worms better left alone.

 

[YippeeSkippy]

Dirk, that seems like it would be making a mountain out of a molehill. Seriously, I can't count the times Skippy's fixed bent mailbox poles over our lifetime, or replaced/repaired a brick here or there.

 

[Dirk]

I agree. And I did say if the fix cost is relatively minor to just pay it (or fix it). But if the material is no longer available, or if it's an entirely different color now, and/or the neighbor is crotchety (hmmm, may be projecting there!), then the cost of the fix might get up there.

I also acknowledge that contractors that take advantage of the fact that most people will avoid any confrontation, let alone a lawsuit or official complaint, makes me see red. When we let contractors off the hook, even for minor things, they are emboldened to repeat despicable behavior on the next guy.

But the notion of the demand letter, if I wasn't clear, wasn't really to set up a trial or the formal complaint, but to make the PB think so. So that he would maybe do the right thing, for himself if not for the neighbor. I was just suggesting bluffing his bluff.

Hopefully the PB will see avoiding the consequences as enough incentive to fix the problem.

 

[custix]

I agree. And I did say if the fix cost is relatively minor to just pay it (or fix it). But if the material is no longer available, or if it's an entirely different color now, and/or the neighbor is crotchety (hmmm, may be projecting there!), then the cost of the fix might get up there.

I also acknowledge that contractors that take advantage of the fact that most people will avoid any confrontation, let alone a lawsuit or official complaint, makes me see red. When we let contractors off the hook, even for minor things, they are emboldened to repeat despicable behavior on the next guy.

But the notion of the demand letter, if I wasn't clear, wasn't really to set up a trial or the formal complaint, but to make the PB think so. So that he would maybe do the right thing, for himself if not for the neighbor. I was just suggesting bluffing his bluff.

You're on the exact path I'm thinking, as well. And, yes, the demand letter that you're describing would be required and likely an affidavit if it got to small claims. And, yes, the cost could easily get up to a few grand for the reasons you mention.

And you're exactly right about contractor attitudes. If this were the only thing they did and at least tried to appear helpful in fixing this or any of the other things, it would be a much lesser deal. There's a lot of context here over the time of the job that makes this a bigger deal than it would otherwise be in a vacuum. For a $75K job, they could at least try to be helpful. I offered a settlement of all damage (just to call it over and I'll deal with the rest) for about $500 and they outright rejected it. For a $75k job, that really pisses me off and there's a good chance I might go as far as small claims (I have some legal training) if I can't get them to settle after putting a civil complaint together along with a demand letter/affidavit from my neighbor.

Heck, if it were me, I'd pay $500 immediately just not to have a bad review. It just doesn't make sense to me why they will fight over something like this.

 

[Dirk]

It just doesn't make sense to me why they will fight over something like this.

Because that's what a lot of contractors do now-a-days. It costs them nothing to say "no." If you go away to avoid confrontation, they win. Didn't cost them a thing. No consequences. If they say "yes," they're out $500. Since ethics is no longer a concern, nor reputation, it's likely going to be less out-of-pocket to try "no." If you try to sue them, especially in small claims, they know that a judge will either award you the $500, or not. They'll ride the court case out, knowing the only consequence is paying the amount they should have paid in the first place, and because there is always the possibility that you will either give up at some point, or that the judge will see things their way. There will be no punitive damages. Maybe $50 worth of court costs. They know the odds are in their favor, that you will cave at some point. It's a numbers game, and the cost of the damages is not one of the numbers. So it doesn't matter to them if it's 500 or 5000. They know that if they say "no" to 10 complaints, only one of them will sue them. And if that one wins, that they will only pay for the damages, nothing more. Meanwhile, they are still 9 ahead.

That has become a common business model for contractors. "Doing the right thing" now means beating the consumer into submission, not actually doing the right thing. So you have to be prepared that the PB will reject the demand letter, as a matter of course. That's why the Contractor Board complaint can work. Along with the demand letter, it conveys your level of commitment. And sometimes they'll step in and coerce the contractor somehow (that's how I got paid by a PB for damages to my pool).

But you have to have the stomach for it, and the time to spend on it, and a good sense of the likely outcome. Otherwise, it's good money toward bad (I'm using "money" to mean money, time and stress).

 

[AUSpool]

We built, or rather the PB built, our new pool on the boundary. In the process they trampled the neighbors landscaping, plants and lawn. I contracted and paid for the pool to be built so ultimately I felt I was responsible. So I bought a couple hundred dollars worth of plants and landscaping and put his garden back better than it was before. Money well spent when the scaffold went up on the boundary a few months later.

 

[Dirk]

We built, or rather the PB built, our new pool on the boundary. In the process they trampled the neighbors landscaping, plants and lawn. I contracted and paid for the pool to be built so ultimately I felt I was responsible. So I bought a couple hundred dollars worth of plants and landscaping and put his garden back better than it was before. Money well spent when the scaffold went up on the boundary a few months later.

Definitely agree that of all the things of value at stake here, the neighbor's good will is at the top of the list...