On appeal from the Department of Community Affairs, Docket No. BHP-704-07-05/W#180893.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 2, 2011 -
Before Judges Waugh and St. John.
Joel and Kim Bradus (collectively Bradus) appeal from a decision of the Department of Community Affairs dismissing their claim under the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20 (the Act). After reviewing the record in light of the assertions advanced on appeal and considering the applicable law, we affirm.
Bradus purchased a new single-family home with a finished basement in Spring Lake Heights, which had been constructed by Family Homes Construction, LLC (FHC). The basement drainage system consisted of a full interior parameter drain (a floating floor), two sump pits with sump pumps, and two dry wells.
In accordance with the Act, Bradus received a ten-year warranty from FHC that commenced on October 15, 2006, and the home was warranted for the first year against defects arising from faulty workmanship and defective materials. Further, it was warranted for two years against defects caused by faulty installation of plumbing, electric, and heating and cooling systems. N.J.A.C. 5:25-3.2.
Before turning to the specifics of this appeal, we outline the procedures to be followed by a homeowner who experiences defects in a new home, as outlined in the applicable regulations. A homeowner with a covered defect within the warranty period must provide written notice to the builder no later than seven days from the expiration of the applicable warranty coverage. N.J.A.C. 5:25-3.3(d). Upon receipt of such notice, the builder has thirty days to conduct an inspection and provide the homeowner with a written statement explaining when and how the builder will resolve the problem. If the builder does not respond within thirty days, the homeowner may file a notice of claim and demand formal dispute resolution with the Bureau of Homeowner Protection (the Bureau) in the Department of Community Affairs. N.J.A.C. 5:25-5.5(b)(3). A homeowner seeking to pursue the matter must file the notice of claim within fourteen days of the expiration of the thirty-day inspection period afforded to the builder. Ibid.
If the homeowner files such a claim, the Bureau will initiate a conciliation/arbitration hearing, N.J.A.C. 5:25-5.5(c)(3), and if unsuccessful, the Bureau will decide the claim. In the event either party is dissatisfied with the Bureau's decision, an appeal can be filed with the Office of Administrative Law (OAL). Ibid. If the homeowner prevails, and the builder fails to correct the defect, the homeowner may file for compensation from the New Home Warranty Security Fund (the Fund). N.J.A.C. 5:25-5.5(e).
According to the State's records, between April 12 and 18, 2007, there was an excessive amount of rainfall in Monmouth County, measuring five to seven inches. During this period, the sump pumps were removing water from Bradus's basement into the dry wells. Eventually, the dry wells overflowed, which created ponding on their property and that of their neighbors'. The Borough of Spring Lake Heights was contacted regarding the flooding. In response, Borough workers disconnected the oneand-one-half-inch diameter PVC sump pump discharge pipe from the dry well entrance pipe and replaced it with a one-half-inch garden hose that drained the water to the street.
On April 18, 2007, Bradus informed FHC that the basement was flooded. Bradus contended that the flooding and subsequent damage to the wall, floor, and contents of the basement was caused by a defect in the drainage system. In May, Bradus made repairs to the basement by removing the lower two feet of sheetrock wall and insulation, as well as the basement flooring.
FHC denied there was any defect in the drainage system, and attributed the flooding to the excessive amount of rainfall. At Bradus's request, FHC replaced one of the sump pumps. FHC asserted that the pump had been unable to drain the sump pit because of the replacement of the PVC pipe with the smaller diameter garden hose, causing a backup into the sump pit, which then overflowed into the basement.
Bradus also argued that FHC should have installed Bilco doors over the outside stairwell leading to the basement, and that failure to do so caused water to accumulate at the bottom of the stairs which eventually flowed into the basement. Additionally, Bradus argued that the two dry wells were of an insufficient size to accommodate the foreseeable amount of water being removed by the sump pumps.
FHC contended that the outdoor stairwell has a drain at its lowest point and, even if the drain did not function properly, the amount of water able to flow over the raised lip and into the basement would have been negligible. It contended that the lack of Bilco doors would not have caused flooding in the basement. FHC also maintained that the dry wells on the property functioned properly and the reason for the overflow was due to the ...