Aqua Pool customers seek a way out of deep end

Release the contractor? Get another? Negotiate?

August 29, 2010 

  • AT A GLANCE

    A brief history of mechanic's liens and how they work:

    • HISTORY -- All 50 states have a mechanic's lien law of some sort. The basis for California's law is in the state constitution, Article XIV, Section 3: "Mechanics, materialmen, artisans and laborers of every class shall have a lien on the property upon which they have bestowed labor or furnished materials, for the value of such materials, for the value of such labor done and materials furnished; and the Legislature shall provide by law, for speedy and efficient enforcement of such liens."

    • HOW DOES IT WORK? -- Contractors and subcontractors can file liens for many types of work, from landscaping to plumbing to building, and suppliers can file liens for the costs associated with such work. Often, mechanic's liens are filed against homeowners who pay general contractors for improvement projects, and the contractors then fail to pay subcontractors or suppliers. In California, liens are filed with county recorders.

    • WHAT HAPPENS? -- Mechanic's liens are attached to property titles. Liens can be cleared by payment or court action. If unresolved, liens can present problems for people trying to sell or refinance their property or obtain loans.


    The Better Business Bureau of Mid-Counties offers these tips to avoid mechanic's liens:

    • RESEARCH -- Check company references and with the Better Business Bureau and the Contractors State Licensing Board, both of which keep databases summarizing complaints against companies.

    • PERFORMANCE BONDS -- They add to your overall cost of a project but help ensure that projects will be completed in accordance with contracts.

    • CONTRACTS -- Add language stating that final payment is not due until after all mechanic's liens have been resolved.

    Sources: Better Business Bureau, California Department of Consumer Affairs

    On the Net:

    www.bbb.org/us/article/247; www.cslb.ca.gov/consumers/legalissuesforconsumers/mechanicslien/understandingmechanicsliens.asp

Karen Neff figured she was luckier than many customers because Aqua Pool & Spa was just finishing her project when it suddenly went out of business Aug. 19.

"Then the lien notices started coming in," Neff said.

By Friday, she had received warnings from four suppliers or subcontractors apparently stiffed by Aqua, demanding a combined $17,000 or face losing her house.

Neff had filed a formal complaint with state investigators, joining at least 46 others. She then called the San Joaquin County district attorney's consumer fraud unit, which is accepting complaints about the Modesto-bred, Manteca-based company.

"Why should we have liens on our homes and they get away Scot free?" the Danville woman said. She paid Aqua for pool and spa covers, she said, but the cover company said Aqua didn't pass the money along, so she paid again to finish the job because she's concerned for her children's safety.

Several people among 50 or 60 with unfinished pools said they also face multiple lien warnings, which are precursors to mechanic's liens that can lead to foreclosure or make it hard to sell or refinance homes.

State law allows such liens to protect suppliers and subcontractors.

Modesto's Glenn Higginbotham said he "didn't get a good night's sleep" after receiving a lien threat. He and many others said they have yet to hear from Aqua despite vague promises to help customers.

The Bee has been unable to reach Aqua officers since its swank showroom closed, leaving 200 employees out of work. One, Hugo Crossway, said Friday that workers got paychecks Aug. 20 for a previous pay period, but received nothing for their labor on Aug. 16 and 17.

The company's Web page has been removed.

Two families said Aqua contacted them. One negotiated the unfinished portion of an $82,000 backyard project and the other requested a contract release.

Jim Britton of Mountain House said an Aqua representative on Thursday said the company "should be able to finish my pool," which lacks plaster, and replace a barbecue island in his plans with another version. But Aqua owes him a fireplace and hasn't finished his covered patio and arbor. And what about his three-year maintenance deal?

"This would not come close to making me whole," Britton said.

Steve Ferguson of Oakley said an Aqua representative Friday asked him to sign a form releasing the company from its contract, indicating Adams Pool Solutions would pick it up. That Pleasanton company specializes in pool renovations.

"There's no way in heck I'm going to do that," Ferguson said. "(Aqua) broke the contract, not me. I'm not releasing them from diddly."

Can't assume contracts

Adams Pool Solutions owner Tony Adams said an Aqua customer from Ceres called him Friday, asking about his company assuming her contract with Aqua. He's happy to negotiate new contracts, he said, but can't until both parties cancel their old deals. And, he said, "I can't warranty something that someone else did," or finish Aqua's projects for free.

Online searches produced no sign that the company had filed for bankruptcy protection as of late Friday, suggesting contracts remain in effect.

Doug Higgs said other pool companies have evaluated 85 feet of plaster cracks in his Discovery Bay pool, recently finished by Aqua, and all recommend destroying the pool and starting over. Aqua recently drained the pool to make repairs but abruptly went out of business and crews never returned, he said.

Luke Blacklidge of Lafayette said an Aqua salesman and a project supervisor assured him the company would contact him "with a plan to finish the job. I'm skeptical," he said.

Augustine Morales bought a barbecue island from Aqua, or its affiliated furnishings store, in May but it was damaged when delivered two months later. A representative said the company is "still working on getting my grill, but I find that very hard to believe," Morales said.

Several customers said they hold no ill will toward Aqua employees, described by Neff as "a bunch of decent, hard-working people who were duped like us."

"So much is said about anger and deceit, but nothing about the people who, day to day, truly made this company a great company for many years," said Kathi Satriles of Modesto, whose pool was not finished.

Bee staff writer Garth Stapley can be reached at gstapley@modbee.com or 578-2390.

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