Folks – After a couple months trying to resolve a problem regarding a wet basement I finally had to tell the GC that I wasn’t willing to continue with him. Also, it’s kind of a substitute GC – the original guy has apparently moved from the area, and this fellow has taken over for him. This fellow tells us that he’s now the owner of the “company”. We’d met him before; he was called a partner but in any interactions we had seemed to be an employee. We had no business dealings with him at all; he just did some of the work. (For those interested, details regarding the basement fiasco were posted earlier, here’s a link to the thread:
http://forums.taunton.com/tp-breaktime/messages?msg=59265.1)
I’ll detail the subsequent saga below for anyone who’s interested, but my question is what to do now as the substitute GC is threatening me with lawsuits and liens. The amount remaining on the contract is about $2K, which represents 5% of the contract price. That was the amount which by the contract was to be paid on completion. It’s also the amount that according to the contract was “5% discount back to Owner for delays not due to unforeseen circumstances” The time stated in the contract for the job was ” to be completed no later than 90 days from the start date” which was 1/5/05.
Anyhow, my last contact with the original guy was about a month ago, when he was supposed to come out and try to fix the water coming into the basement. I’ve not heard from him since, but the substitute guy came out and put some hydraulic cement into a groove he cut in the edges, where it seemed most of the leakage was. He didn’t do all the edges,leaving the vertical edges done only a couple feet up. When I pointed out that water was coming in all the way up those edges, he told me that that wasn’t the case, so he didn’t fill them. Later, he admitted that he’d run out of hydraulic cement. Yesterday, along with the threats, he admitted that he’d only had one bucket of hydraulic cement because he couldn’t afford to purchase a second.
Meanwhile, the water kept seeping in. I got him to come back to finish filling the vertical edges, but he came back without any hydraulic cement; I had a big bucket of the stuff so let him use it. There was still a lot of dampness so he agreed to come back and “seal” the slab. Two weeks later he shows up to do this “sealing” – I show him that there are wet spots scattered around the slab, not just at the edges. He tells me he’ll “spot-seal” and I see in his truck he has just a single can of regular Drylok, the stuff that isn’t intended for floors, won’t stick to wet concrete, and certainly is useless if applied to individual spots since it relies on a continuous film for effectiveness. That’s when I tell him we are done.
I get a call the next day from him, and that’s when he makes the threats regarding putting a lien on the house, suing me, and so forth. He also tells me that he has to have money, he needs it for his family and child, he’ll do whatever he has to, etc. It got pretty ugly.
I have pretty good documentation of this whole saga, as I kept a running diary. I think that in several ways I’m on sound legal footing – 6 1/2 months after the start of a 90 day job I think is way beyond any reasonable delay, nor is the job even finished. But I want to protect myself in any way I can against having to go to court over this. So, if there’s any steps I can take now, I’d appreciate hearing about them. Registered letter? Should I look for a lawyer? File in small claims court against him preemptively for the cost of redoing the basement properly?
BTW, there’s other stuff not done: there was no grading when they backfilled, a swale and a perennial border were obliterated by the excavator and not fixed; there’s a flagstone walkway that was damaged and not fixed.
I appreciate all suggestions and ideas – this had turned into a nightmare beyond belief. Many thanks and apologies for the length of the post.
Ken Platt
North Granby, CT
Replies
I'll say it first... get a lawyer to read your contract and advise you.
David has the right idea.
You need to get an attorney to write him a demand letter and/or default letter.
It will depend on the state law and your contract.
You might have to allow him one last chance to make it good, but the letter will detail exactly what is needed to be done and a fixed time to complete it.
Should not be any problem based on what you have said, but just spend a couple of hundred to get it put in the proper format.
You might not even have to do that depending how the orginal "company" was structured and if he is the legit owner now. You might have zero relationship to him. But allowing him to do some "work" you might have extended the contract to him.
But again for a few bucks the attorny should be able to figure that out.
Edited 7/27/2005 4:31 pm ET by Bill Hartmann
Bill, having never hired a lawyer, I'm wondering how I go about this. I'm guessing I should look for someone under the Real Estate Law section of the yellow pages? Or is there some other term to describe the specialty I need? What is a demand/default letter, and how does that help me?
Sorry for all the questions; I appreciate the assistance very much.
Ken
When you go looking for a lawyer, and I hope this goes with out saying, look for a lawyer who is experienced in contract law and/or construction law.
I'm not certain how to go about doing that...but you could try calling the bar association in your state as a starting point. They might have a list of firms/individuals and what they specialize in.
The specialty would be construction law.But for something like this and general practice attoney should be able to handle it." What is a demand/default letter"A Demand letter would state that such and such and such are not done or not done to specs that the contractor has 10 working days to complete it to statisfaction and if not you will hire others to finish it and if there is any money left after paying the new contractor that this one will be paid. And if there are extra cost they are liable.A Default letter would state because of this, that, and everything else does not meet contract requirements that they are in default in the contract and it is being terminated.Which one would be appropriate depend on the contract that you have and the state law. And more important if you have any contract with this person.
Too bad your in CT. My sister is a real Estate attorny in NY and soon openign her own shop. Could be her first case. She's evil, wouldn't want to be on her bad side.
An attorney writing him a letter to spell out your position is going to cost you around $300. Give the guy a call and tell him so and ask if he would rather settle for the $300 in exchange for a statement from him marked paid in full. Also have the original GC sign off.
Then dont allow him on your property again.
That may not hold up. It is imperative that the status of the contract, the "contractor", the work, and the payments be checked out by a lawyer. I would not improvise any solution to a guy who is getting ugly, threatening a lien and talking about hungry kids. I would hit him with the big guns right away.
Just a thought... Since the amount is so small, why not just say "listen, we both know that A) you dropped the ball, and B) if we get lawyers involved no one's gonna win but them, I'll give you a grand to go away and that's my only and final offer". I hate the concept of buying peace, but I've been there and as an attorney friend has said to me... "how much justice can you afford?"
David - I was wondering if you could elaborate on why an agreement might not hold up. I had considered the option of a small payment to make him go away, but certainly don't want to do that and then have him come back at me. I'd envisioned some sort of notarized agreement clearly saying the contract was concluded, all obligations satisfied, etc. Thanks for the assist.
Ken
I think you could do that... pay him off, wrap things up, be done with it. However, I think the way in which it's done could turn out to be extremely important. I'm not a lawyer and have never been in court, but I am led to believe by lawyers I have hired that when it gets ugly, courts like to throw out agreements and decide what the fair value of the work is.
Suppose he provides you with a letter and you give him a thousand bucks. Suppose he then liens the property or files a small claim, saying that he was not treated fairly and that he should still be paid more. Are you SURE the letter will hold up? I wouldn't be, so I'd get a lawyer to handle the termination. I'm sure some people would handle it themselves, I'm just not one of them. I'm guessing it would take $300-500 in legal fees.
DavidThere is also the issue of who owns the company.Even if he pays him off the orginal owner might show up again wanting money.
If he can't cough up enough for a pail of hydraulic cement do you really believe he can retain counsel?
I truly don't know what to make of the things this guy said. He even repeated the statement about being unable to buy that second pail of hydraulic cement, saying he didn't even have the $10 for it. He kept repeating that he needed money, as though he were truly in some sort of desperate straits.
Anyhow, I guess I thought if he was going to do anything, he'd try small claims court. In CT the filing fee is only $35, although you then have to find the $$ to pay a process server to notify the other party. Apparently most folks don't retain counsel for small claims court.
Also, on review of the contract I found a line that states that "All disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association". So I'm not even sure if he could sue me in court; I have no idea how one arranges an arbitration or what it costs.
There's quite a few things here that don't make a lot of sense. If it wasn't happening to me I'm not sure I'd believe this story.
Ken
Ken - The point about the arbitration is important. Many courts won't even hear a case where an arbitration clause exists. Some courts don't like their powers to be usurped and will ignore it. If he goes to small claims, you will have to check specifics in your state.
Usually, this is done through the AAA. Last one I filed with the American Arbitration Association was for a $75,000 claim and the filing fee was $750.00. On a smaller claim, the filing fee will be less, but I think the minimum is $500.00. The American Arbitration Association doesn't work cheap. There's also a separate charge for the arbitrator - typically $1,500/day (and up). If your boy can't pay for material, he can't afford to litigate this.
I would get a letter out to him, raising the problems, the cost of the damages, etc., and I would specifically point out the arbitration clause. Try to discourage him from going to court.
The local building dept. may be the faster answer to the problem.
Don
Don
>>That may not hold up.
It'll hold up just fine. If it ends up in court the first thing an arbiter wants to know is why you did'nt try to work it out between yourselves.
A final statement marked paid in full is all the guy needs, and like I said signed off by the original GC also.
The GC can threaten all he wants to sue but the chances of him following through are slim, especially over 2 grand. He would end up getting 20 cents on a dollar, if anything -considering he's way over his completion date and there are quality issues. It would'nt cover the legal fees.
Are you a lawyer?
No, not a lawyer. I dont think the original poster logged on to this web site looking for lawyers, maybe just looking for feedback from people in the trade.
Every job comes to a conclusion at some point. Determining who owes what to whom is part of that aspect. If we need to involve a lawyer to obtain a statement marked "paid in full" we're in the wrong business
"If we need to involve a lawyer to obtain a statement marked "paid in full""In this case who can sign paid in full receipt?
The first post says the original GC has apparantly moved from the area. Sounds like it might be a little difficult to locate the guy and persuade him to sign off.
Ken,
I wonder if the new guy is even licensed as a contractor? MIght not even have legal standing to make demands.
You need a lawyer. You only have this guy's word that he even has a stake in the company. His signature isn't on your contract and unless he a produces a document (that your lawyer needs to read) showing the establishment of a partnership business, you have no relationship with him.
Many areas of the country have legal referral services. This might be better than thumbing through the yellow pages. You tell the referral service what type of lawyer you need, and for a small fee they give you the names of lawyers in that specialty.
Ken- Getting a lawyer is a good way to go for the reasons outlined by everyone else.(I do/did it in NY) Finding someone experienced in construction is a bit harder. A general practice attorney with some grey hair could probably put together a good letter, and what you will be looking for is a Release. The Release should be for any potential liens and for the contract, and ideally, for any other liability (Did someone get hurt one day when you weren't there?) In terms of the damages, he might owe you more than you owe him because of the leaks. Get some prices on what it might cost to fix the water leaks in the basement.
If you really want a construction lawyer, and if you used, or are friendly with an archy, ask him who he uses. You might also try the local chapter of the AIA (American Institute of Architects) and ask who they use or recommend. At one time, I was an associate member of the group, for just that reason.
You might also check with the local building dept. on licensing status of the company and their complaint procedure. Here in NY, I've seen them occasionally get this type of problem resolved. If the twit doesn't have a license, he's in bad shape. If he's really needing money, he may have dropped the license or the insurance (which usually means the license goes too). Likewise, typically if there's no license, he can't sue you in court (in NY and some other states).
The lien that he threatened could be meaningless for the above reasons too. Many times, the lien law requirements are very strict. A lawyer could probably help out on that unless you want to start reading your state laws on the subject.
Good luck. Don
Before you call a lawyer, contact the licensing board for your state and see if there is a formal complaint process. This may get your situation resloved without paying legal fees.
Dave, thanks for the tip. Turns out Connecticut has a specific part of the Consumer Protection agency for Home Improvement Contractors. I've got a call in to them and will discuss the situation and see what they suggest.
As an aside, there are also listings in the phone book section of Consumer Protection for "bottled water" , "Cider" and "Frozen Desserts". Hard to believe there's such problems with desserts that it requires the intervention of the state government, but what do I know.
Ken
Glad to help, Ken. I don't know how things work in CT, but here in CA the last thing we want is the Contractors Licensing Board getting involved. Even if the customer is wrong, the aggravation just ain't worth it.
Good Luck
The best defense is a strong offense.
You already have documentation of the failings.
You seem to have no bona fide evidence that he is actualy the owner of the original contract with you.
but if he is, you get estimates from other contractors to fix what is ruined, the leaks, the perenial bed, the grading etc, and file suit against him for damages to cortrect his deficiencies.
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Ken7 -- Washington Post recently had a good article on what a couple should do in a situation similar to yours -- bought old house and the basement leaks and was not disclosed by the seller. Writer said -- are you going to spend $10,000 and years of waiting to get back $8,000 basement water proofing cost and getting back $8,000 might be 50-50. Recommendation was to cut the losses -- see if a compromise could be reached and move on.
Is it $2,000 that is still owed -- a lawyer would cost you maybe half to look and write a letter -- for $2,000, I'd do what is necessary to work a compromise and use it as a learning experience -- cost of a graduate level course in contracting.
Ken,
He can't afford a $10 bucket of 'crete.
His name is not on the contract.
His GC # is not on the permits.
He has no 'Interest.' That means he has no rights.
Next time you talk to him tell him to get off your property or you will call the cops and sue him for the cost of repairs + court cost + emotional damages + punitive damages + everything your lawyer can dream up.
Call it $150,000.00
Quit Worrying and sleep well.
IF. . . IF, he ever shows you all the paperwork needed to show an 'Interest,' then deal with it . . . by sueing him.
SamT