How to deal with potentially l
August 23, 2010 7:17 PM   Subscribe

My contractor hasn't completed my renovations in the required time. I've given him notice that he's in default of our contract, and he had 7 days to get it together. He's now AWOL. Do I need a lawyer? If so, how much will that cost? If not, what do I do? If so, what do I do until I get one?

I hired a contractor to do renovations on a condo. I had reason to believe he would do good work and be reliable, but it seems I was wrong.

The contract
I think he is used to working without a written contract, but I was not comfortable with that, so when we met to finalize arrangements I had ready a contract based on the CMHC's sample contract. Basically it is their contract ( with the blanks filled in. In addition the contract includes a document with the breakdown of the budget (e.g. this much for tile, this much for labour and other materials required to install the tile; this much for shower doors, this much for labour and other materials to install shower doors, etc.) and a detailed description of the work to be completed.

"Substantial completion" was to be done by the end of July and "full completion" by mid-August. There were no penalties for late completion except that if the place wasn't ready for me to move in by the end of July (When he had promised me that it would be completely done), he would pay storage and added moving expenses. He had six weeks before the end of July to do the work (basically put in a new kitchen, hardwood floor throughout, paint, and assorted small fixes here and there)

The contract states that in the event of a disagreement about interpreting the contract we would go to arbitration.

The problem
It wasn't done when I moved in, but he said it would just be a few more days, so fine. For two weeks I got "Today we'll finish" pretty much every morning and "Tomorrow we'll finish and if not the next day for sure" in the evening. This despite the fact that often they didn't even have the materials to do things that weren't yet done.

The contract requires that he repair any damage done to the condo or replace damaged things if they can't be repaired and obviously to provide an appropriate standard of workmanship. The kitchen floor is not up to snuff. After the first installation tiles were uneven with large differences in height from one to the next. I pointed this out and he apologized, agreed that it was terrible and replaced some of the tiles. Of course now those tiles were uneven with the original installation. So he redid some more tiles. The upshot is that they're still dramatically uneven and I'm not happy with this.

And of course lots of other stuff still isn't done. I was constantly asking him when he would finish and eventually he tried to tell me that my rushing (2 months!) to finish was slowing him down. Whatever. I left town and told him I wanted it all done when I got back (after the final completion deadline) or I would have someone else do it. WHen I came back it was clear they hadn't even entered the condo when I was gone let alone done any work.

So when I got back I checked the contract and saw that I have to give him 7 days notice. So I wrote him the required letter saying he was in default of the contract and had 7 days to finish. That day he showed up (he had not showed up for several days previous) after calling me several times. He made no mention of the 7 days but did get one of the important missing tasks almost done (still not actually done).

Current situation
At this point I need the kitchen floor fixed, and a bunch of smaller things completed. I have not seen him since the day I sent the letter.

I suspect that perhaps he rushed to do the work once I got the letter but he's since been advised by a lawyer to cease all contact. Our contract says when the 7 days are up I can hire someone else and basically deduct the cost of that from what I owe him. This is what I want to do, but I'm scared he has something up his sleeve and I don't know what that could be.

Potential Glitches
1. Our original contracted included a typo in which something was listed as costing 10x as much as we had agreed. (i..e the typo was an added 0). I pointed this out to him (orally) 2 days later and he agreed it was a typo. This portion of the work is done. I have no proof that he agreed it was a typo, other than that it would be ludicrous if it wasn't a typo.

2. He invoiced me for a payment about a week and a half before I sent the letter. Payment is due 7 days after invoice. I did not pay this because it would leave me owing him very little and I did not want to owe him so little until the work was done. He seemed to acknowledge this by saying he was in a hurry to finish since he wasn't going to be paid until he finished. This I can prove. However, the contract includes an interest stipulation for late payments. I'm worried I'll be on the hook for interest until this is all resolved (instead of until I sent him a letter saying he's in default).

3. Delays due to materials not available are excusable delays and so not subject to the "penalties" described above. Some materials were delayed: Nothing was delayed beyond the day for full completion. One thing was substantially delayed. Some other important things were "delayed" considerably, but I have reason to believe that he just didn't order them until very late. One more late thing (still not bought) he says he knows where to get but doesn't want to get that one because it's more work to install than the thing he wants but can't find. Many things that could easily have been done were delayed and so other jobs were not done as soon as materials were available (e.g. the flooring was delayed a week, but the condo sat empty with no one doing any work until the flooring showed up. THEN they finished ripping up the old floor and sweeping it out.) Based on this and the fact that materials were not delayed beyond the final completion date and the fact that many things for which materials are available are still not done: material delays do not account for the late completion. I could see him arguing that they do, however.

The Questions
I believe the amount of money I still owe him will be enough to cover the cost of completing the renovation. I would like to do as our contract says: Hire someone else and when they're done give him whatever money is leftover. The fact that he has ceased all contact worries, me however.

1. Could have had something up his sleeve and if so, what?
2. Do I need a lawyer ASAP or should I wait and see what happens?
3. What should I be doing in the meantime? When the 7 days are up should I give him notice (and ask him to return my key!!) or just forget about him until it comes time to figure out how much I still owe him. and pay him.

I'm doing my best to document everything and will take a tonne of pictures of the incomplete or inadequate work before having anyone fix it.

4. How much would a lawyer typically run me for something like this? would it be likely that I could ask him to pay for legal expenses?

I am in Ontario.

TL;DR: My contractor hasn't completed the work we contracted for. Some completed work is not up to reasonable standards. I want to hire someone else to finish the work (essentially at his expense) without being burned. What should I worry about? What should I do?
posted by anonymous to Law & Government (10 answers total) 2 users marked this as a favorite
You need to talk to a lawyer, yes. You should seek consultations with several lawyers to find out how much they think this will cost and whether it's worth pursuing.
posted by decathecting at 7:36 PM on August 23, 2010

IANAL, but in general court is not someplace a contractor wants to be. If anyone has damages, it's you, not them. If you are satisfied (in the monetary sense) that you have paid him so little of the agreed-upon total that you can essentially pay someone else to complete the work and not be out much, I'd do that and never look back. You'll probably have to rekey the place; I would never trust the situation, even if I got the key back from the contractor.

I'm trying to get the mental picture of a construction-type contractor taking YOU to court because you didn't pay him for never completing a job, and I can't see it, unless this guy has deeper pockets than most and has really, really big balls. It wouldn't take a William F. Buckley to get any even half-way competent judge to agree that the contractor defaulted and should get nothing if he tried this (in fact, that should/would trigger a counter-suit on your part for the additional expenses you'll inevitably pay to complete the work).

But change your mentality/vocabulary a bit - you're not doing it at HIS expense, you're using YOUR money. If I agreed to make you a sammich for $5 and I never made you the sammich and you still had your $5, you'd be using YOUR money to get someone else to make you a sammich. But contractors are so good at playing these passive-aggressive games - your "bugging" him was slowing him down, forsooth.

I've been amazed in my adult life as to how contractors, every one of them from cabinet makers to web designers, all act this way. In my next life I would want to be a contractor, except I would hate to live this way.
posted by randomkeystrike at 8:02 PM on August 23, 2010

Oh and don't make the mistake of paying the NEXT guy much until HE* completes the job.

*or she
posted by randomkeystrike at 8:03 PM on August 23, 2010

When we had a major problem with a contractor, I spoke with a friend of a friend who is a very good lawyer. The best piece of advice she gave me was: do what you need to do to "get your house back" (i.e. get the work done) and don't worry so much about legal maneuvering. Suing the original contractor (or having an attorney send him a nastygram) will not get your house back. At best it will get you some money back. For me (and I think many people), having the project done helped my personal stress level and peace of mind much more than getting a court settlement would have. It also allowed us to put the whole thing behind is within a matter of weeks rather than the months or years a lawsuit might involve.

I don't necessarily think it's bad to go after him to try to get some reimbursement, but I would expect very little and I definitely would not make it my top priority. If I were you, I'd concentrate on finding a high quality, reputable contractor to finish the work correctly. Once that's completely squared away, you can try to get some reimbursement from the original guy if you want to. In our case, we were out a few thousand dollars, but we decided it wasn't worth the stress and legal fees to try to recoup it. An expensive lesson, but the sooner it was over the better.
posted by sharding at 8:17 PM on August 23, 2010

In my state, a contractor can put a lien on your house when they do work, to ensure they get fully paid for the work. You might want to check and see if you have this extra complication.
posted by galadriel at 8:39 PM on August 23, 2010

The invoice was for what? The most important part of the sample contract is section 5. Payment Schedule, but I'm having trouble understanding where you are at there. What has he completed and what have you paid him? If you think you're still holding enough to hire somebody else, then go ahead and pursue that angle. You don't owe this guy anything except for the work he has completed, so if he hasn't done the work in the invoice (which should be tied directly to one of the completion lines in section 5) the stuff about the 7 days or whether the delays are excusable are moot. Just hire somebody else; I doubt you'll ever from this guy again.

If he has completed the work on the invoice, then you pretty much owe him the money. If you want to claim the work is too shoddy, or want to try and get money back from him, that's when lawyers should get involved. But you should pay for the work he's done to your satisfaction, and should give him a chance to fix things that aren't to your satisfaction. Followed by promptly firing him from the job of doing the uncompleted work. (IANAL)
posted by and hosted from Uranus at 8:54 PM on August 23, 2010

Watch out for a lien being put on your property! This is a common contractor tactic to ensure payment. You need to contest this ASAP if that is what he is doing. Also change your locks etc.
posted by saradarlin at 9:10 PM on August 23, 2010

I'm trying to get the mental picture of a construction-type contractor taking YOU to court because you didn't pay him for never completing a job, and I can't see it, unless this guy has deeper pockets than most and has really, really big balls.

Contractors regularly use liens against property to contest non-payment. It's part of the whole maddening cycle of not completing the work on time. Many years ago I worked at the office of a contractor and preparing liens was part of every-day work.
posted by OmieWise at 5:24 AM on August 24, 2010

I'm going through this exact thing myself. My info pertains to California:
- Ditto: watch out for liens.
- Watch out for liens from subs, too (they may have to had given you notice ahead of time that they could do this, so you may be immune).
- Even if they can't put a lien on your property, the contractor could potentially sue you for nonpayment.

- The best money I've spent is to document their poor workmanship. I paid for someone who was one step up from a building inspector. This person serves as an expert witness in construction defect cases. But even the building inspector's report on the defects was very helpful. So, have some kind of independent expert document the work before you return to construction.
- The worst money I've spent is on lawyers. I lawyered up right off the bat, and I have been quite disappointed. You may still want to pay for one opinion ("is what I'm planning to do ok, per the contract?") but have low expectations beyond that. Otherwise, don't worry about having a lawyer unless they have one, or you yourself decide to sue them.
- Your reading of the contract sounds good. However, contract negotiations put you in the messy world of human psychology, so don't devote all of your energy to the legalese; devote some to politics and psychology.

- Are they licensed? In California, you have to be licensed to collect a lien above a certain amount. If they are licensed, standards for their work are higher, and the contractor licensing board might be willing to get involved. In some states, they run mediation programs and even recompense homeowners whose contractors skip town while owing money.
- Also, licensed contractors are generally not allowed to just randomly skip town on a job.

- I agree with sharding's friend. It's easy to let this conflict absorb your energy, but what you really need to focus on is getting someone out there to finish the job.
posted by slidell at 8:09 AM on August 24, 2010

What Slidell said. Also what Sharding said. <>>
I live in California also, and we had problems with the contractor who did our bathroom renovation. We withheld the last payment, which was almost half of the total, with a detailed list of what needed to be fixed.
We found a group online, Certified Real Estate Inspectors, and scheduled a "construction inspection." The Inspector was able to evaluate against the Building Code, so our complaints weren't vague or subjective. For example, in California the Building Code specifies how "off-level" tiles may be. It's hazardous to have uneven surface.

Does your province or city require a Building Inspector from the govt to sign off on the work? Check the contractor licensing board in your province. In California, you can post a complaint against a contractor electronically over the web.

==> all communication should be written. Nothing verbal. Follow up conversations with a summary email or letter
posted by ohshenandoah at 12:27 PM on August 24, 2010

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