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'They simply cannot do the job'
By Michael Rezendes, Globe Staff, 4/29/01 CANTON - Mark and Anna Shafir bought a Toll Brothers home here in 1996, hoping to become what the company said were typical customers: happy empty nesters with a dream house in which to spend the rest of their lives. But three years later, the dream seemed more like a nightmare, as the Shafirs found themselves in court claiming that an infuriating series of problems with their home were the builder's responsibility, and having to defend themselves against a lawsuit by Toll alleging that their public criticism of the builder was attempted extortion. The complaints about their home that later landed the Shafirs in court began shortly after they moved in. Discolored carpeting, bouncing floors, and doors hung crookedly all signaled what they say is inept workmanship and the use of second-rate materials. Only months later, the kitchen ceiling sprang a leak and kitchen tiles began cracking. Worse, they said, workers assigned by Toll to make repairs seemed incapable of solving many of the home's growing list of problems. Take the doors on the Shafirs' three-car garage. After Mark Shafir complained that he had trouble opening and closing them -- they are all manually operated -- Shafir said Toll workers attempted to make repairs on eight separate occasions over a period of more than a year, and failed every time. "They simply cannot do the job," Shafir says. Then came a series of disputes with local Toll officials over how and when additional attempts at repair work would be made. In one case, the company agreed to replace damaged carpeting. But when Shafir demanded that it first make repairs necessary to stop the floor from creaking, Toll officials refused and the carpeting was never replaced, he said. Later, according to Shafir, Toll officials said they would need unlimited access to the Shafir home during working hours to make repairs. But Shafir, who works for a high technology firm, said he could only allow Toll workers inside during the afternoons and evenings. "I'm a working person. I can't sit home all day," he says. By then the Shafirs were becoming still more disappointed with their home's design, as well as the materials that had been used to build it. For instance, the floor and insulation of the couple's master bedroom, located directly above the garage, were so thin that Anna Shafir was awakened each morning at 5 a.m. when Mark started his car. Likewise, the walls and insulation of a first floor "elite room," an expensive Toll Brothers option, were so inadequate that guests using the room could easily hear others using the toilet in an adjacent lavatory. Overheard or not, anyone inside the bathroom choosing to wash with hot water is in for a surprise. Because the home's hot water heater is located at the opposite end of the house, it takes up to two minutes for the hot water to arrive. And when it does, the pipes knock, spitting water into the sink in steamy, staccato bursts. "You stand here waiting for the hot water and when it comes you can't use it," Shafir says. Outside the home, in front of the three garage doors, sink holes formed in the black-top. Meanwhile, a retaining wall around the elevated driveway was also sinking. And routinely, a stiff breeze blows out the home's screens. At one point, Toll offered to pay Shafir a lump sum of $35,000 so he could have repairs made himself. But the offer was withdrawn when Shafir said he might accept 25 percent of the value of the house, or about $115,000. Later, for legal reasons, Shafir hired a housing inspector who pegged the cost of necessary repairs at more than $217,000 -- or nearly half of the home's original purchase price. But Shafir insists he was never looking to win a monetary settlement. "My only interest has been to get the repairs done and get them out of my house," he says. Moreover, despite his disappointment over the condition of his home, Shafir says his greatest frustration has been Toll officials who have repeatedly failed to honor commitments to complete repairs. "I don't like to be lied to," he says. "If you're not going to do something, don't say you're going to do it. And if you promise to do it, do it." As talks between Toll and Shafir over repairs, access to the home, and a potential settlement dragged on, the Shafirs made several attempts to contact company officials, including vice chairman Bruce E. Toll. But they said nearly all of the approaches were rebuffed. Then, the Shafirs tried a different tack, distributing fliers that described their frustrating experiences with Toll Brothers to residents and potential customers in several other Toll subdivisions. That got the attention of Toll's corporate headquarters, but it wasn't the kind of attention the Shafirs were looking for. In October, 1998, a Toll lawyer, Michael Araten, wrote them a letter threatening a lawsuit if they didn't stop leafleting. Specifically, Araten described the fliers as "libelous material" and said that if the Shafirs did not stop distributing them, he and others at the company would respond "using every legal means at our disposal." Eight months later, Toll Brothers made good on the threat, slapping the Shafirs with a lawsuit claiming that the alleged construction defects were "either nonexistent or not covered by the warranty." Toll also claimed the Shafirs' leafleting constituted an attempt to "extort" concessions from the company and therefore absolved it from any responsibility to make additional repairs. Shafir, who said he had already spent $15,000 of his own money to correct the company's faulty grading in his front yard, hired a private housing inspector and an attorney and counter-sued. Since then, a judge has ordered the case to arbitration, which is called for under a mandatory arbitration clause written into the warranty provided to the Shafirs and other Toll Brothers customers by the company. As Shafir says, "It's a huge war." |
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