Contractors’ Responsibilities
As an independent contractor, you have obligations to your clients. You have agreed to carry out work for them, and you also have to do this work to a professional standard and according to the terms of the contract. Of course, every contract is different, so you need to be wary when it comes to the terms and conditions that you agree to, but there are some obligations common to all contractors that every contractor needs to be aware of. Otherwise, you could leave yourself open to claims of negligence and liabilities against you.
All contractors have the duty to exercise reasonable skill and care. This comes from common law and it is a rather nebulous law that includes many different areas. A contractor should know how to carry out their services and do them competently , as an ordinary competent contractor would. The law does not expect you to deliver a perfect service, but you do need to use the right tools and carry out the job to a professional standard. If you do it poorly, then you have broken your duty under common law.
You are also under an obligation to follow particular procedures and requirements that are expected of you. In the case of a medical professional, they should follow medical guidelines, whereas a builder should follow building regulations. You don’t necessarily need to follow your own guidelines, official guidelines or even rules and regulations, but you do have to do the work in a way that is widely regarded as a standard practice. If you don’t provide an acceptable service and it causes damage to a person or their possessions, then you are guilty of negligence.
Signs of Bad Workmanship
What constitutes "bad work" can therefore vary as the definition will necessarily change from case to case. Despite this, there are certain work done on a project that is considered almost universally to be "bad". These include the following:
- (1) Failure to comply with building codes
- (2) Straying from plans and specifications without proper agreement
- (3) Failure to complete work in a timely manner.
Most of the time the defects will have been done on purpose. However, a few times sub-contractors perform shoddy work that simply isn’t caught until it’s too late to recover. In that circumstance, the GC may try to pin the blame back onto the owner for the bad work.
Gathering Evidence of Bad Work
Establishing a claim for defective workmanship can be a time consuming and costly process. However, the necessary documentation to establish both the breach and damages does not need to be an overly burdensome exercise. Generally speaking, it will be necessary to conduct a thorough investigation to collect evidence of the poor workmanship. This may involve satisfying several steps, including photographs of the alleged defective work at multiple stages of construction, review of any communications between contractor and owner which may allow for an argument such as waiver or custom work, and review of expert evaluations. Each of these steps are discussed more fully as follows. Photographs of the alleged defective work taken at multiple points during construction will be critical to a proper investigation of the subcontractor’s workmanship. This should show the work at completion and, if available, photographs taken during the course of the work to show the quality of the work beneath the surface. Photographs should also been supplemented with an affidavit sworn to by the party with knowledge of the work performed as well as statements from individuals who witnessed the completion of the work. These statements should include not only the work as constructed but also the conditions existing prior to or during construction which could affect the quality of the work. These statements will be particularly important in cases involving extensive work done over a long period of time, as there may not be sufficient photographs documenting all of the critical aspects of the construction. Review of any communications between the contractor and owner is particularly important to establishing whether custom work was performed and whether defects are present. This is because custom work is usually specific to the individuals or business involved and may not be subject to published guidelines or workmanship requirements. In addition, testimony from a contractor may be necessary to show the involved parties’ understanding of any special or custom work required. In addition, if the contractor did not follow communications or if those communications were not clear, this could be a basis for argument against the owner (i.e., waiver). This would be particularly relevant in the case of additional work items, changes in previously agreed upon work, and design defects. Finally, it is generally necessary to perform an expert evaluation of the quality of the work performed. This will usually require several experts working together to evaluate the work itself and the calculations which went into the design of the work. Although this type of work is time consuming, it is necessary to establish faults on the order of a breach. The expert will then be able to provide an estimate of the cost to repair the defects caused by the contractor’s poor workmanship.
Legal Options to Consider
Some clients may have specific legal recourse options to address defective or substandard work by the contractor. For small-scale projects, where common law damages may be insufficient to fully address the contractor’s breach, other recourse options may be more cost-effective.
Criminal Prosecution. While criminal prosecution of a contractor for shoddy or substandard work is rare and cost prohibitive, some degree of prosecution may be feasible for a bad contractor in limited circumstances where the contractor’s actions fall within a white collar criminal statute, such as felony fraud or grand larceny or misdemeanor fraudulent invoicing or false advertising. In many jurisdictions, contractors who operate unlicensed will be liable to some degree in civil and in certain instances also in criminal actions, but these cases are typically brought by the state or local municipal prosecutors.
State Licensing Board Complaints. Most states have a state agency responsible for regulating and overseeing licensed contractors. Client complaints may lead to investigations by the state agency of the contractor’s practices, and if the agency substantiates a breach of "home improvement" laws, the contractor may be reprimanded, fined, or lose its license in more grave instances requiring a recommendation for license revocation. In California, for example, the Contractors State License Board’s website contains extensive information about Sonoma County contractors, including a consumer complaint form to file with the Board. The relative efficacy of this recourse option in protecting consumer you against shoddy work was demonstrated in McCoy v. Padilla, a small claims action in San Diego County in which Timothy McCoy successfully defended a claim that he was required to return payments made for construction of a residence in California finding that Padilla had placed his contractor’s license number on McCoy’s escrow check without authorization. This lawsuit ultimately resulted in Padilla’s license being revoked.
Small Claims Court. Clients may bring suit for small claims against their contractor for deficiencies in their work and obtaining successful results. Under California law, the maximum amount for which a judgment may be entered in small claims court varies by individual county. Generally, the threshold is $5,000.00, with lesser amounts as the limit for individuals bringing claims rather than business entities and for claims against licensee contractors. Some small disputes, such as claims for down payments, may be resolved in small claims court where the attorneys’ fees may not be worth the effort and expense of litigation. Filing in small claims court is generally significantly less expensive than obtaining a trial setting and other fees associated with complex civil litigation.
Arbitration. Many home improvement contracts today contain a mandatory arbitration clause, which may be identified in the heading or footnotes of the contract itself, requiring the client and contractor to file for arbitration before bringing suit in court. Under California Business and Professions Code section 7159, the contractor must provide the client with the option to opt out of, and negotiate the terms of, the mandatory arbitration provision in commercial contracts for home improvements exceeding $500.00.
Determining the Strength of your Case
When clients come to me for the first time, they want to know whether it is worth the time and energy to file suit. Many clients believe that "they have a good case" because they are frustrated by the contractor’s work or lack thereof. But whether they have a "good case" is not enough to warrant the time, energy and expense.
The first thing I want to know is whether my client can show that the contractor has breached the contract. In other words, can my client show that they performed their part of the contract and the defendant contractor failed to perform its part of the contract. If your contractor says they will provide you with a repair to your roof in the spring for $10,000.00, and then comes to do the repair but does shoddy work that blows off in the first rain storm, then you may have a strong breach of contract case. Other examples include the client can show that the contractor has breached an implied warranty provision because the contractor installed a defective product. Another example may be the contractor failed to comply with applicable safety laws. The possibilities are endless, but one thing always holds true . You cannot make a claim against a contractor unless you can prove that your contractor breached a part of the contract (verbal or written). Even if you can show that the contractor damaged your home, it may make no difference if you still owe the contractor for other work.
Another element to the case that must be considered is the amount of damages my client can prove to the court. This means, my client must not only prove the contractor was at fault, but they must also be able to put a dollar number on how much it will cost to remedy the situation. Another thing that must be considered is if my client has damages that are not related to the breach of contract, but my client cannot show the contractor caused the damages, then my client will receive no relief from the Court. An example would be if my client timely pays the contractor for work performed but the contractor fails to perform the work. If my client sues the contractor for the breach of contract and proves the contractor did not perform the work, the client may only be entitled to the return of the money paid to the contractor. My client may receive no damages for mental anguish or pain and suffering. This is a contract case. Breach of contracts have strict remedies.
Options Aside from a Lawsuit
Resolving disputes with your contractor without going to court may be preferable to filing a lawsuit if you don’t want to spend time, money, and emotional energy on the matter. There are a number of less adversarial ways to handle potential legal conflicts with contractors, including:
Mediation
You and your contractor can ask a neutral third-party to step in to help both sides negotiate a resolution. If successful, you don’t have to go to court or be involved with a lawsuit. Mediators often work for a court system or judicial organization, such as the American Arbitration Association (AAA). Remember that a mediator can facilitate a solution, but they can’t give you legal advice.
The mediator can ask both parties relevant questions to illuminate the nature of the dispute. If the mediation is successful, both sides can sign an agreement that will be binding.
Arbitration
Arbitration is a more formal process than mediation, and it’s a good option for many construction-related disputes. It gives you and your contractor the opportunity to tell your story in front of someone with experience in the construction field and contractual issues, such as a retired judge.
If the arbitration is private, only you and the contractor can attend. The process is formal enough that it will typically take place in person, using an agreed-upon facility. You may be able to do it electronically, but in either case, that qualified person will act as the arbitrator — hearing both sides and making a decision about the outcome.
The arbitrator happily has far more experience in construction-related disputes and conflicts than the typical person in the legal system does. For this reason, some people feel that they get better results using an arbitrator as a more experienced judge. The decision on the outcome is binding, as it would be in a court of law, so arbitration is faster than litigation but still not as cheap as mediation or straight renegotiation.
Renegotiation with the contractor
You can always try to renegotiate directly with your contractor. This method hinges on the ability to maintain a civil working relationship with your builder, however, and of course, may not be possible in every situation. Sometimes you just have a bad contractor, and you need to find a way to work with the person or company because you can’t afford to lose the money you already put into it, but that doesn’t mean that you want to keep working with the person.
Finding a Lawyer
One of the most important and difficult things to do when it comes to a breach of contract issue is to find a qualified and experience attorney to assist you with the process. This is more difficult than it may sound at first, since many people do not have experience with retaining legal counsel. When it comes to selecting legal counsel for one of these situations, there are a few things that you can do to increase your chances of having a positive outcome. When seeking out an attorney, try to find one who has focused on construction law specifically. Someone who has experience with cases similar to yours will likely know much more about the law than someone who isn’t familiar with it. You can search the internet for an attorney in your area, and many lawyers will offer free consultations if you call their office. If you are unable to find someone that you think is qualified to help you with your case, ask friends and family members to recommend someone that they know . Referrals from people you know who have used a lawyer is one of the best ways to find someone you can trust to help you. One thing to keep in mind is that when you are going up against a contractor, it is important for you to pursue your claim. The contractor will often have a number of cases that are going on at the same time, all of which ring up a significant amount of legal fees. As a result, they’ll often get tired of dealing with these cases and will try to settle them as soon as possible. They often see how committed you are to pursuing your claim, so if you give the impression that you are readily willing to look for a way to settle rather than take the case to court. If you find an attorney who is serious about your case and does not back down, it is far more likely the contractor will settle fairly rather than once the court date arrives.