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Homeowner shouldn’t rush into lawsuit over leaky basement

Dear Benny: I purchased a new home from a large developer nine months ago. Prior to the purchase, I had the home inspected, and the inspector noted in one corner of the unfinished basement some moisture around the metal tabs that connect the poured concrete forms.

The inspector said it was probably the downspout but I should confirm that with the builder. The builder adjusted the downspout, ran some water at that corner for 20 minutes and showed no water had seeped through. I closed on the house a few days later.

Every time it rains, moisture has come through that area and new areas are popping up each month. During this past winter, it did not happen. However, in two upper corners there was frost.

The builder came out, used some kind of monitor, which showed heat was being lost there, and sprayed some additional foam insulation, which corrected that problem.

This weekend I had a basement waterproofing company come out to tell me why my basement continues to leak through these tabs that the builder had caulked and painted over. The technician said the builder used too little waterproofing material on the outside walls.

What do you suggest I do at this point? –Denise

Dear Denise: What kind of warranty did the builder give you? Review all of the various documents you received from the builder, including any promotional information about the house. Also, ask a lawyer if there are any laws in your state regarding new home warranties.

You may also find this information on the Internet, by searching “builder warranties in XX state.” Additionally, your state attorney general’s office may have relevant information that may assist you.

I also suggest that you hire a structural engineer to give you a written report as to the cause of the problem and any proposed solutions.

Once you are armed with all this ammunition, I would send a strong letter to the builder, with a copy to your state’s attorney general. That should get the attention of your builder. Give him two weeks to respond.

If he does not answer or is otherwise unresponsive, you have to decide whether it makes sense to hire a lawyer and possibly file a lawsuit.

I often tell my clients with similar situations that they should just bite the bullet and pay for the corrections. Keep in mind that litigation is time-consuming, expensive and always uncertain.

Dear Benny: I’ve been a real estate broker, investor and landlord for 25-plus years. Now my main business is here in the world of mediation, where I specialize in areas of home and family.

I mediate civil matters, where in Maine we have a rule requiring alternative dispute resolution in most civil cases and also under Maine’s strong Foreclosure Diversion Program.

Even here in Maine, there is nothing preventing a homeowner and servicer from discussing mortgage relief directly, and this is happening all across the country. It is amazing, however, how that conversation is more meaningful and productive when we mediate in a court setting with a servicer representative with authority at the table (if only telephonically).

We also have a buyer-seller mediation program from a mediation clause in the purchase and sales agreement (since 1991) promulgated by the Maine Association of Realtors.

An interesting discussion is becoming more prominent between the legal and mediation communities about the specific role of mediators in legal disputes. Central to this is the question of whether the mediator should be more facilitative (focused on allowing the parties to find their own solutions based on what works best for their needs and relationship) or evaluative and problem-solving (focused on advising parties of the likely court outcome and using the mediator’s judgment to suggest party action.)

The bottom line for me is that the client will never be best served by substituting my judgment for the client’s, and that conflict often has elements aside from legal that must be addressed to fully satisfy the client. Recent research continues to support this perspective.

As long as we continue to stay in the rut of old-school mediation, we’ll never fully capture its benefits. Mediators and attorneys can think of their relationship as collaborative rather than competitive. –William

Dear William: Many thanks for your interesting and thought-provoking email. Mediation on foreclosure issues is cropping up all around the country.

Unfortunately, too many homeowners have been unable to get in contact with their lender to discuss their financial problems and issues. Mediation, at the very least, gets the parties talking to each other.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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