Who Is Responsible??

[StillHope]

I'd try to find a lawyer in Honolulu if the developer is there.
May be it's easier to find a contingency case when a developer is involved? .(I am sure you've already thought about it,Carrie..)

[Peter Epperson]

I was involved in exactly the same situation last year. I built a pool at a home where the garage was sliding due to grading material being placed on top of green waste. This prevented complete compaction of the base. The general contractor was to blame. He should have known (I'm sure he did know) and ultimately it cost him plenty. In addition to the cost to rebuild the structure he had a hefty legal bill. He tried to pass the blame but it all came back to him. This was in Hawaiian Shores and I understand that this was not the only home that suffered the same fate down there. It's a sorry situation when people try to cut corners.

[John S. Rabi]

Carrie, I really think you should contact an attorney. While I don't know all the details, it seems you have a pretty good case and you would recover the attorney cost too. Just because the agent is no longer in the business it doesn't matter. The real estate companies represent the parties and not the agents, and most real estate companies have E&O insurance. While the agent is not required to know everything about the property there is a question of "should he/she have known?"

Aloha,
John S. Rabi, GM,PB,ABR,CRB,CM,FHS
808.327.3185
http://www.JohnRabi.com
Typically Tropical Properties
"The Next Level of Service!"

[Chuysmom]

Thanks for your input Kathy. Of course, I don't intend to take this as far as you have gone on your own...Kudos to you for your diligence. For my own abilities I have to quote that "he who represents himself has a fool for an attorney." LOL Also - I believe the responsibility is on the shoulders of the seller as to disclosure. We could not know (haole factor) about sinking land and green waste improperly disposed of.

I have started the process with my own letters and inquiries and have considered actions with the DCCA...or even a moderator to cover all bases before we go into debt trying to process this case. We do NOT have deep pockets to be sure.

I did expect everyone involved in this process to point in another direction, or totally exonerate themselves from any responsibility, and was not surprised by their reaction.

I have also gotten some wonderful advice and information from other people along the way.

We have neighbors down the road whose front yard of their property caved in completely and when I mentioned to the GE my knowledge that he came out and repaired the property, he stated that he was paid to do it by the developer.

ONE QUESTION: I was under the impression that an Architect was responsible for each step taken in the construction of a project. Is this incorrect? Doesn't he do more than draw up the plans?

PETER: We also live in Hawaiian Shores Recreation Estates...please email me privately...comparing notes may help us somehow.

I have checked on the GE and actually found cases where he was warned and fined in 2007, and long ago in 1992 there was a JUDGEMENT against him. There are no further details given.

I'm sorry to bore you all with this...I appreciate all your input! I made a decision not to mention all the names involved, but if you live in Hawaiian Shores there were several developers and this one in particular slapped these houses up for their Japanese clients who were charged triple the prices they should have been. Homes were built with as little quality and concern as possible.





Carrie Rojo

http://www.carrierojo.etsy.com

"The world is changed. I feel it in the water. I feel it in the earth. I smell it in the air. Much that once was is lost, for none now live who remember it." Galadriel - LOTR

[John S. Rabi]

quote:

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Originally posted by KathyH
...some brokers are reluctant to draw on their E&O. In fact, when we had a situation with a large east side brokerage, regarding disclosure and the agent's knowledge - the broker's response was not to file an insurance claim, but to say - Go right ahead and sue me; I have a small army of attorneys on retainer to squash you little people...

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That was intimidation and you fell for it Kathy. Once a lawsuit is filed against a real estate company they are required to contact their E&O provider, and trust me, they do, since all they have to pay is the $1,000 to $5,000 deductible. In fact, the E&O Policy requires the real estate companies to notify the provider right away even if there is just a threat of a lawsuit. If they don't, they risk losing coverage.

Ethics complaint with the local board is totally worthless and a waste of time, especially here in Hawaii, where the local boards operate like country clubs.

It takes RICO of DCCA at least 3-4 years to investigate a complaint and they can not recover money for you, except in extreme fraud cases when you can get money from the State Real Estate Recovery Fund.

Carrie should check the Purchase Contract first, since it most likely requires mediation as the first step of dispute resolution. The statue of limitation should be checked too, but I don't want to venture into the legal field.

Aloha,
John S. Rabi, GM,PB,ABR,CRB,CM,FHS
808.327.3185
http://www.JohnRabi.com
Typically Tropical Properties
"The Next Level of Service!"

[DanielP]

As I recall, back in the days when I had a real estate license in California, unless the buyer has contracted with and personally paid a "buyer's agent", all Agents are actually seller's agents and are paid by the seller via commissions earned and collected through escrow. All agents have a fiduciary responsibility to the buyer.

My inclination is that the uniform building code that was in effect at the time of construction might point the finger squarely at the G.C. Look under Foundation guidelines.

Dan, G.C.

[John S. Rabi]

quote:

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Originally posted by DanielP
...unless the buyer has contracted with and personally paid a "buyer's agent", all Agents are actually seller's agents and are paid by the seller via commissions earned and collected through escrow. All agents have a fiduciary responsibility to the buyer.

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Sorry Dan but that's incorrect. There is no subagency in Hawaii and the seller's agent doesn't have fiduciary responsibility to the buyer. This is clearly outlined in the Purchase Contract. (I believe subagency was outlawed everywhere a long time ago.)

The buyer's agent doesn't get paid by the seller. The seller pays the commission to the listing company and the listing company co-op with the company representing the buyer. There is no contractual relationship between the buyer's agent and the seller.

Aloha,
John S. Rabi, GM,PB,ABR,CRB,CM,FHS
808.327.3185
http://www.JohnRabi.com
Typically Tropical Properties
"The Next Level of Service!"

[DanielP]

Thanks for the update John, My license expired about 20 years ago.

Dan

[Nalu]

I don't have anything to add legally, but wow I am so sorry to hear about this. It blows me away the ineptness of both the bulldozer and the GC. My husband is a GC and won't even allow customers to bury green waste on the non building areas of their lot, due to the settling/danger factor, to actually do this underneath a housepad is just blatant incompetency and total lack of any common sense. If the GC is licensed he has to carry liability insurance and this should cover this kind of thing I would think. Good luck, and I certainly think you have a solid case and should get reimbursed for any attorney's fees. Angela

[Kelena]

I am going to state this very simply: that's their problem. Sue all who reasonably may have contributed to the problem and then let THEM sort it out in the famous construction defect bout called "battle of the cross-defendants". ("All" may not include the sellers....more trouble than its worth perhaps).

Not legal advice. Just a general observation.

I am so sorry you are having this issue. It is important to get a specialist in this area. There are very few in Hawaii. Also, if others are affected, talk to them. And move quick. Time is never your friend.