For nearly 11 years, I served as a secret weapon in the defense of the nation’s largest homebuilders against numerous construction defect claims involving thousands of building units. Most of my colleagues and clients were often surprised when I mentioned that one of the top builders in the country was a non-profit: Habitat for Humanity. Collectively, we have often wondered what might happen if a public-benefit housing provider ended up in litigation. It appears we may see what happens soon enough.
Hurricane Katrina was devastating to a large number of inhabitants of Louisiana, Mississippi and adjacent areas. Fortunately, there have been some truly wonderful people who have stepped in with support. One of those entities is the Make It Right Foundation that was started by Brad Pitt. According to their website, the organization has built 87 homes in New Orleans, out of 150 it has committed to building.
These homes are not like most homes. Although the homes sell for a target price of $150,000.00, all are high-performing, LEED Platinum-certified, designed by award-winning architecture firms and utilize concepts inspired by William McDonough’s Cradle to Cradle design principles. Not to mention that a big part of the intent behind this project is to leave the future homeowners with buildings that will be much more resilient when (not if) the next big hurricane rolls through town.
Ultra-affordable, cutting edge architectural designs, extremely high performance, using the latest sustainable materials and practices, built in a short time frame using a lot of volunteer labor — talk about high risk!
Once again, Murphy’s theorem proves true
Approximately 30 of the homes built by Pitt’s foundation utilized a novel sustainably sourced material manufactured by Timber Treatment Technologies. The product, TimberSIL, is made from the rapidly renewable Southern yellow pine which has been treated with sodium silicate and heat, which essentially encases the wood fibers in glass. This is much more environmentally friendly than standard pressure-treatments that are applied to wood for protection when exposed to the elements. (The chemical that was at the center of the case made famous by Erin Brokovich is used to chemically treat telephone poles.)
Unfortunately, the new treatment hasn’t proven as effective as the manufacturer and others had hoped:
Actor Brad Pitt’s Make It Right Foundation, which has built 100 energy-efficient new homes in the Hurricane Katrina-ravaged Lower 9th Ward, is considering legal action against the manufacturer of an innovative glass-infused wood that was used in some of the homes’ outdoor steps and front porches. The wood has begun rotting, despite being guaranteed for 40 years, a Make It Right spokeswoman said…
But now, decks and steps that were built as recently as three years ago are showing signs of rot, with the wood taking on a dark gray tinge. “It was unable to withstand moisture, which obviously is a big problem in New Orleans,” [Make It Right spokeswoman Taylor] Royle said.
Make It Right Foundation will make things right
The foundation will remove and replace the TimberSIL product everywhere it was installed, at an estimated cost of $150,000.00 over a period of six months. That includes locations where no deterioration or other resultant damage was found. According to Brad Pitt himself:
“Make It Right is ambitious and tries new things all the time in order to make our homes better,” he said. “Where we find innovative products that didn’t perform, we move quickly to correct these things for our homeowners.”
Aside: I really want to highlight this point. Make It Right Foundation is spending its limited resources to fix construction defects, even if those defects did not result in damage. Builders – if you’re tired of increasing insurance premiums from construction defect claims, maybe it is time to consider a much more rational and cost-effective approach: just fix the damn problem before you get sued. But I digress…
According to The New Orleans Advocate, spokeswoman Royle stated that the organization is currently exploring the possibility of legal action against the manufacturer of the TimberSIL product:
“We are evaluating our rights under the law and under the product warranty,” she said. “We hope to have a candid discussion with the company and have asked them to put their insurance carrier on notice. We prefer to resolve this short of litigation, but we are prepared to pursue all legal remedies if necessary.”
Not an isolated occurrence
The New Orleans Advocate also mentioned this nugget:
Earlier this year, renovations at a 19th-century inn in western Massachusetts stalled after contractors who had used TimberSIL to build deck rails said they realized the product would not hold a coat of paint or withstand the region’s climate. Replacing the material was expected to add $100,000 to the project’s originally contracted price tag of $760,000, according to local news reports.
There are several takeaways in this story:
- For-profit builders (and their over-compensated legal counsel…) could stand to learn a lot from non-profit builders when it comes to customer service.
- With new materials and techniques come risk: design and construction professionals need to anticipate that risk and be prepared to respond accordingly.
- There is nothing sustainable about throwing out a bunch of building materials that are poorly made, inappropriate for their environment or improperly installed (see the LEED Platinum case study nobody wants you to read).
Image of Make It Right Foundation home under construction courtesy Mark Gstohl