Bad tile work and deposit on next job.

[Curt Bixel]

The story I am going to post below contains quite a number of rookie mistakes, so feel free to point them out. If you can find over 5 rookie mistakes, you get the prize.  Here it is:

I hired a property manager based upon the glowing endorsement of a colleague. I put them fully in charge of a duplex that I own and told them I would follow their advice on anything from remodeling to tenant choice, to the choice of contractors, etc.

To increase the asking rent, the PM suggested I remodel the kitchen and bath in each side of the duplex, make some other small repairs, do a bit of landscaping, and paint the walls with the color grey that seems to be so popular. She went with a contractor that she had used many times in the past and highly recommended. I visited the property after the PM said the work was done and was not impressed with the quality of workmanship, especially the tile in the kitchen and bath. The tile spaces were all over the place and there was quite a bit of lippage. I asked the PM to take a look at it. She said the work looked terrible, complained that her guy must not have used spacers. She explained, however, that the property was already rented, the tenants didn’t seem to care, and tearing out the tile would likely cause the loss of a month’s rent. I paid the contractor and decided to move on. I did ask to go with a different contractor for the second half of the duplex, as my experience says that if the things you can see are not done correctly, there is a high risk that the things you cannot see are also done incorrectly.

Within two weeks, the tiles began coming up. After a bit of research online, it seems that the problem stems from the contractor’s choice of using pre-mixed mortar to affix large format tiles over Ditra, a waterproof membrane. With nowhere for the water to evaporate to, especially with the grout already placed, the pre-mixed mortar behaves the same way it does in the sealed bucket, which is to remain wet. It is quite possible that the tiles looked great when installed, but had been moving under the weight of foot traffic since that time.  The installation instructions for both pre-mixed mortar and the Ditra are clear that the pre-mixed mortar is not to be used in this type of installation.

In any case, the problem was so bad that there was no saving the floor. Tiles were still moving, lippage was extreme, and tiles were coming up.

I asked the PM if we could go with a different contractor for the second side of the duplex. We did, and we got much better results with the tile installations. The work was finishing up there at about the same time that the problems were revealing themselves on the first side, so I had the tenants move to the second side to allow for the kitchen and bath to be repaired on the first side.

The property manager is no longer in the picture for another issue that is unrelated. When they came back to pick up their lockbox, they noticed that the first side of the property was vacant and asked if the tenants had moved out. When I told them the tile issue necessitated moving the tenants to the second side so that the tile could be repaired. She said I should get my money back from her contractor that did the bad tile job.

This seemed to make sense. When I contacted the contractor however, they said that this was the first time they were hearing of the problem, which was quite a surprise, as I thought the PM had been in close contact with them. I explained to them the issue we had run into with the tile and the various expenses associated with fixing all the issues. I also pointed out that I had put down a deposit for both the first and the second side of the property to be done, and I wanted my deposit back for the work not done.

I had assumed that they would look at all the expenses I incurred due to the bad tile work and at least offer to refund me the installation charge for the tile work.

Instead, he said that the tile work was fine, and that he was going to keep my deposit for the second side. He said it was his legal right to do so because of the language in the contract that said I had a 3 day period to cancel the contract, and, after that point, if I decided not to have the work done, that I forfeit my deposit. He may well have a legal claim to it. He certainly does not have any moral or ethical claim past any money he spent out of pocket for materials.

I am curious what to do at this point. My sense of right and wrong says that keeping the money paid for a tile job that started coming up within a week after installation is straight up wrong, and that keeping any part of a deposit not already spent on materials at this point is beyond the pale. At the same time, had I known the contractor was not in the loop, I would have asked them to come and take a look at the tile before tearing it out. Also, the contract does say I forfeit the deposit by not going through with the work.

What should I do at this point? Should I just recognize that I did not protect myself in this case, got screwed, and learn my lesson? Should I take this to small claims court? I have no idea.

I have emails from the second contractor explaining why the choice to use pre-mixed over Ditra was certain to end in disaster and that there was no saving the floor.  I have pictures that show clearly that the tiles were not successfully adhered to the Ditra.