How To Sue A Contractor For Shoddy Workmanship Your Legal Options Explained As a homeowner, you have basic legal rights when hiring a contractor to complete a project. These rights are in place to protect you from substandard or incomplete work and possible financial loss. One of your basic rights is that the work must be completed according to the contract, plans and specifications. This means that the work should be completed when the contract says it should, by the methods stated in the contract, and that any material used should be what is called for in the contract. A basic rule, well established in law, is that the payment for the work need only be made once the work is complete.However, even if it were not stated in the contract, the contractor has to start and complete the work in a timely manner. When a contractor does not complete the work in a reasonable amount of time and fails to make any of the required progress payments, they are in breach of contract and may be liable for damages .There are also implied warranties designed to offer homeowners legal protection. One of these assurances, which is often outlined in a written contract, is an implied warranty regarding the quality of materials to be provided. The law requires contractors to provide materials that are fit to be used for their intended purpose. If, for example, the purchase of materials is left to the contractor, the contractor has to use reasonable care to obtain suitable material for the job that will pass the standards of good and workmanlike construction.If the contractor does not use reasonable care or does not use good materials, you are entitled to remedy for the defective materials.Keep in mind that under most contracts, nothing in this post would prohibit your liability to make certain a contractor is properly licensed or insured. Determining if You Have Substandard Work The first step in determining whether you may have a civil claim for poor workmanship is to determine whether the work is in fact ‘bad work.’ There are a number of signs that you may be dealing with what the law calls ‘bad work’ in this context, such as discoloration in the paint, stains and spotting all over, or rips and stains in the carpet. However, it is not always this obvious. In some instances, the work may not be apparent under normal circumstances, but will still be considered ‘bad work’ nonetheless. For example, if your contractor has installed your plumbing system and you later experience multiple leaks or backflow issues, your contractor is likely to be responsible for the installation of this faulty plumbing system. Similarly, the issue in this example may not be immediately apparent, but it will be ‘bad work.’ Essentially, ‘bad work’ is the general rule of whether the work you receive is up to the standard that you would imagine the contractor would provide, based on his or her reputation for high quality work. This makes the determination of whether the contractor has provided ‘bad work’ with respect to the specific terms of their contract somewhat problematic. As an example, sometimes contractors add a line or two to the contract stating that the work will be completed in accordance with a particular building code. If the code itself requires remedial work, and your general contractor is not providing that work, you may have grounds to sue. If the contractor has simply failed to finish the job in accordance with the contract specifications, and you are not experiencing any issues with the quality or functionality of the work, you probably do not have grounds to sue. Generally speaking, if you notice problems that cannot be remedied with a simple fix, you probably have an actionable breach of contract claim. How To Preserve The Problem Documenting any issue you have with a contractor is very important for a couple of reasons. First, if you need to take the matter to court, then the more evidence you can provide to the judge about what went wrong, the more likely they will be to believe your side of the story. And second, if you’re trying to negotiate a settlement with the contractor, having additional evidence to support your case will make it more likely that they’ll choose to settle rather than spend time and money fighting the case.So what should you be documenting? The first thing to do is to take pictures. Hopefully when you hired your contractor they came in and provided you with a schedule of all the work they were going to perform on your property. If you took pictures before they came in and after, you should be able to see a clear difference. However, it could pay to take extra pictures of any areas of your property that are currently under dispute. If it’s a roofing job, getting pictures from the roof along with pictures from the ground (assuming you’re comfortable climbing up on a roof) showing all the work that was done is very useful. If it’s a drywall job, getting pictures of an area of the wall that was repaired but looks the same as the surrounding drywall shows that the whole area needs to be resolved, not just the repaired area.Another option is to show an expert evidence of the poor workmanship. If you hire someone with a license who specializes in that particular area of trade, they may be able to provide a written evaluation of the work that was done. This can also be a double-edged sword, however, because if you’re going to go to court then the contractor will have access to any such evaluations and may wish to challenge them. But it can add to the expert evidence you have about how the work does not meet industry standards.Finally, what about written communications with the contractor? If you waved unfairly at the contractor on the day he showed up to tell you he was not going to fix something on your property, that may be hard evidence of how you feel the matter should be handled. However, if you first sent them a letter outlining what your issue with them is, giving them time to provide a solution to the issue, and only when they did not responding in kind, then that’s a much stronger position to be in. Again, this offers irrefutable proof to the court of how you dealt with the matter, and just as importantly, how the contractor dealt with it.All of these pieces of evidence, together with such concerns as did you allow the contractor reasonable time to finish the work, are factors that the court will evaluate in determining whether a contractor performed poorly. How To Engage With The Contractor Before proceeding with a lawsuit, it’s worth first reaching out to the contractor, especially if he’s in the area and willing to correct the problems. This is most likely for smaller jobs, but even large jobs sometimes get it right after initially getting it wrong. As you do this, you can approach the conversation in one of two ways.Make contact with the contractor and display reasonable friendliness and cordiality. This may be what you want to do if you have a contractor who has a reputation to uphold, especially when he’s just opened his office door. He’s much more likely to rectify any problems in that case. However, we know that construction is full of people and a lot of them are in the business because it pays well. Shoddy work and contractors that cut corners are going to be common regardless of good reputation. It’s still worth trying to keep like cordiality, but you’ll likely find out in a hurry that the repair estimates you receive from your contractor are not likely to cover the damage they made to your home. In which case, you’ll be forced to exert a little more pressure on your builder and file an official complaint with them.Contact the contractor with a complaint in mind. This may provide you with a quicker solution, but don’t expect it to be smooth sailing afterwards. You may be able to get the contractor to pay for a lot of repairs and in some cases, if you’re lucky, they may even pay for all of it. But there will certainly be strained relations between you and your builder following this. Frankly, most of the time you’ll want to choose between some level of informality and a level of formality. If your contractor is willing to cover at least a part of the repairs, don’t mess up the relationship by being too pushy with your demands. But if he insists that you pay his bill without realizing that he destroyed your home to do it, then you’ll neither deity nor mortal of the realm will be able to stop you from taking him to court. Proposing Additional Resolutions Before considering a lawsuit, a client should explore less costly and more amicable options for resolving the dispute. Alternative dispute resolution ("ADR") refers to any procedure other than litigation that is available for resolving disputes between parties. This includes informal negotiations between the parties to the contract, mediation, arbitration, and dispute boards.Procedures for informal negotiation are typically set forth in the contract. For example, the Arizona State Contracts Section 103 requires resolution of claims at the level of project manager or resident engineer prior to submitting the claim to the district engineer. Slightly different versions of this clause may appear in the General Conditions of federal contracts, state Department of Energy contracts, and construction management at risk agreements. Check your contract to see whether and how it requires claims to be resolved through informal negotiations with the Department of Energy.Mediation is when a neutral third party assists the parties in finding a mutually agreeable solution to their problems. The mediator is a facilitator for the parties’ communication and, if the parties reach an agreement , memorializes it in a Mediation Agreement. Mediation is non-binding. The parties are free to walk away from settlement discussions at any time.Mediation is less formal than arbitration; however, it is also less formal than a typical lawsuit. It is quicker and cheaper than a lawsuit, but an unsuccessful mediation could lead to a lawsuit anyway. "Anonymous surveys" of construction mediation have found a success rate for construction cases of over 75%. A downside is that neither party can force the other to settle; both parties must agree.Arbitration is an alternative to the court system through which a neutral third party – the arbitrator – evaluates the evidence and makes a decision. The parties may choose to have an arbitration hearing in front of the arbitrator (an informal discussion) or have the matter decided on the papers without an appearance. An award is given to one of the parties based on the arbitrator’s decision. The award is binding and may only be overturned in cases of fraud, corruption, unconscionability, misrepresentation, or arbitrator misconduct. It is difficult to overturn an arbitration award. In construction contracts, arbitration is often used in lieu of litigation. However, it is not always faster or less costly than litigation. Arbitration also lacks the degree of flexibility that mediation offers. Filing A Lawsuit In 7 Steps Should you decide to escalate the matter, filing a lawsuit is typically a five-step process: Retain an Attorney. At times, it can be difficult to find competent and experienced representation, since many attorneys (unfortunately) do not understand the issues involved with construction-related lawsuits. But there are good attorneys out there, and the best way to find one is through a referral from someone you trust. Keep in mind: it is wise to retain an attorney who not only understands construction law, but has experience filing lawsuits against contractors for poor work and is willing to take the case to trial, if necessary. Make sure you are represented by someone you can trust and believe in, since it may be up to him or her to convince a judge or jury that you are right and the contractor is wrong. Take the time to find the right attorney. File Your Complaint. In California, a breach of contract lawsuit against a contractor is initiated by filing a "complaint" with the Superior Court. This complaint should outline your allegations against the contractor. Complaints filed in California are public record, meaning that anyone can review the allegations made during the case. Thus, it is important to be upfront and honest with your lawyer, and to understand that he or she may be required to present sensitive information to the court. Serve the Contractor with the Complaint. Once your lawyer files the complaint, he or she will need to formally notify the contractor that a lawsuit has been filed against them. This is usually done through "formal service," where the lawsuit is handed directly to the contractor by registered, certified, or process service. Alternatively, the contractor may be notified about the lawsuit by mail. In any event, these formalities are required prior to moving forward with the lawsuit. Case Management Conference. Once the contractor has been notified about the lawsuit, a court date is set for the first step in the litigation process: the "case management conference." This is a meeting of the attorneys who are litigating the case. During this meeting, the parties discuss the nature of the lawsuit, identify issues in dispute, discuss settlement options, and (if necessary) schedule the next court date. The court gives extensive guidelines regarding what information needs to be exchanged between the parties prior to the case management conference. Accordingly, a good lawyer will help ensure that all pertinent records relevant to the dispute are exchanged prior to the conference. Discovery. Following the case management conference, the parties engage in discovery. This is the period of time that both sides formally request information from one another regarding the claims in dispute. This could include the informal exchange of documents and records, or a more formal exchange of information through a "request for production," "interrogatories," and/or depositions. While this process occurs prior to trial, it is an important part of the litigation process that may require a court to resolve if both parties cannot agree on the information that will be "discovered" during this process. Trial. Finally, if the matter has not been settled, the case will go to trial. At trial, the parties present their evidence to the court (which could either be a judge or jury), and the judge or jury renders a verdict. This is the final step in the litigation process. Possible Outcomes of a Lawsuit Your lawsuit may achieve a variety of outcomes. Perhaps the most likely outcome would be a financial award to cover the losses resulting from the defective work. However, the court may order the offending contractor to come back and improve their original work in the manner you want. In many cases, this comes as a separate order from the financial side.Sometimes, a court will choose to enforce specific performance, meaning that the contractor must fulfill all parts of the contract. Another option could be the termination of the contract, if both parties agree that it has been breached to a degree that the contract can no longer survive.You can imagine that these remedies do not always have the desired effect. If a court enforces specific performance, they may not always get the right outcome in actual practice. In some cases, the contractor may not actually perform as desired, and in others, the judge may order such a massive undertaking that the remedy is impractical for both parties. This is an issue that often arises in cases where someone tries to sue a contractor for bad workmanship.The other possibility is that the court may find that the contractor has not performed poorly enough to allow for a successful lawsuit. This is something that homeowners often don’t notice until a big construction project has been fully completed and the faulty workmanship is revealed. Avoiding Future Problems The best way to prevent the future hassle of a lawsuit over alleged poor or defective workmanship is simply by properly vetting your contractor in the first place. While unfortunately there will always be construction workers, contractors, vendors and tradespeople who do shoddy work, the vast majority of contractors do carry insurance and perform in the normal range of typical good workmanship . If you are purchasing any kind of a home warranty carve out for defects in material and workmanship, that is one way of providing future protection. But the real key before doing business with a contractor, whether for a small home job or a large commercial project, is to thoroughly research the proposed contractor before you hire them. The better and more thorough you vet your proposed contractor before you do business with them, the less likely you may need to file a future lawsuit over alleged defective or poor workmanship.