Legal help - kicking a contractor off the job (1 Viewer)

[jomar]

wondering if I can get some legal advice from the FBG lawyers here. 

backstory:  I hired a designer and renovation company to redo my master bathroom.  We're going on almost 4 months now (on a 4-6 week project) and I still have some issues outstanding.  The bathroom is functioning but the quality of work is incredibly poor.  I have told the contractor to fix the issues and they have been back out a few times.  They fixed some and left others.  At this point, I just want them to never set foot in my house again.  I would like to hire another contractor to fix the problems, pay them for it, and then pay whatever is left to the original contractor. 

this was a $30,000 remodel, I've paid just over $15k so far so the original contractor is definitely in the red so far.  I need at least 3 more things re-done.  Can I hire another contractor, pay them $5k for example, and then pay the remaining $10k to the original contractor?  or do I have to continue to give the original company opportunities to remedy the situation?  if they refuse, then can I tell them to pound sand and find somebody else?  what is the courts view on things like this?  do I have to pay them the $30k even though the work is obviously bad?  I have pictures and documentation should this go to court but would like some guidance before I proceed with my next move.  I can provide more details on the shoddy work if necessary.

thanks in advance!

 

[cashman88]

If you have a written contract (which you should), then you have to follow the terms and procedures set forth in your contract.  Typically, contracts have a provision regarding defaults and those provisions often require written notice and an opportunity for the defaulting party to cure the default.  Once you have properly put the contractor in default according to the terms of the contract, then you can start exercising the remedies that are permitted by your contract.  If there is no remedies section in the contract (or no contract at all), then you remedies will include all legal and equitable remedies that are available.

You should also consider filing a complaint with the State of Michigan (assuming you are in MI) licensing department - see Link

Assuming the contractor didn't perform under the contract, and the work is not reasonably satisfactory, then you should be able to get a new contractor to finish the job and to offset the costs paid to new contractor against what is owed to first contractor under your contract.  In fact, you may be able to require first contractor to pay for all costs to finish the job correctly, even that sum exceeds the remaining amount owed to first contractor (i.e., requiring first contractor to come out-of-pocket to pay new contractor).

 

[=Smackdown=]

Most contractors don't like cleaning up the mess from a previous contractor - had a few tell me this. Some unwritten BS rule among them.

 

[boofatty]

Not a lawyer but I am a pro contractor and deal with this often. Cashman88 is exactly right on the termination language in a contract. You must follow it first.  You cant just hire someone else and F the other guy.

Your local laws may vary some but generally this is how its done. If you dont have a contract you should still build a paper trail, pics and emails to them of the issues, repeatedly (every few days or weekly).  The idea is that 1) you notified of an issue and 2) allowed reasonable time for him to correct. Without that you'll be very vulnerable.  Do that at least a few times, then send a notice of termination letter that recaps issues and gives a final timeframe to remedy to avoid termination. If he fails to remedy you should be clear to fire, but make the termination formal. 

There is a generic legal rule, "quantum meruit" which requires you to pay for what you received.  In construction its used a lot in situations like this.  He will say you owe full amount, your pics and emails will prove otherwise.  In court they'll determine value if it gets there.  You should figure out what he's spent already in advance.  

If he doesnt make it right after notices, etc, its your money and you can backcharge him for new costs, deducted from original sum.  But if theres money left  over owed to him you'd still have to pay him that minus your new cost expenses.

Im not in the residential business but know a lot of those guys can be fly by night outfits. Not all, but many. Odds are you'll never see or hear from him again.  Build your case quickly then fire him and make him pursue you for any outstanding funds. Just dont do it in a vacuum, communicate with him or you'll get screwed.

 

[CletiusMaximus]

good answer cashman88 

 

[jomar]

thanks for the responses, fellas

looking over the contract (more like a one page proposal listing the materials and pricing), the only real legal language is at the bottom and states:

The above prices, specifications and conditions are satisfactory and are hereby accepted.  You are authorized to do the work as specified.  Payments will be made as outlined above.  In the event you account is turned over for collections, customer agrees to pay contractor's costs, expenses and reasonable attorney fees.  A time-price differential of 1 1/2% per month will be added to the outstanding balance if unpaid after 30 days from invoice date.

There are no payment terms on the contract but I know we talked about 50% upfront, 40% upon a fully functioning bathroom, and final 10% upon full completion. 

Our beef is with the quality of the work.  If its bad, can we tell them that we are not paying them the $30k and take us to court if you like?  Something like Trump has done with his contractors if he didn't like their work.  We paid a lot of money for what is supposed to be high quality and it clearly isn't.

as just one example and perhaps the biggest issue at this point:  we have a niche in the wall in the newly tiled shower, which consists of another tile and a marble shelf.  Well, the marble shelf has a saw cut taken out of the front of it.  Like when after they cut it and removed it, the marble hit the saw which was still turning.  Its less than a 1/2" cut but its clearly there.  So far, they have tried twice to fill the gouge with marble filler to make it less noticeable.  It still looks like crap and is completely unacceptable to me but to fix it means they have to re-tile the entire niche and possible the surrounding tile.  a nice bit of work but something that is non-negotiable for me.  if they refuse, can I just not pay them?  I haven't signed any completion form like they have been pressuring me to do for the last 6 weeks. 

issue #2 right now is we have 3 light fixtures over our double vanity.  The middle light is almost a full inch higher than the other 2 lights.  How hard is it to make sure the lights are level? 

there are more areas where the quality is lacking but this just seems like complete negligence to have a shelf with a gouge taken out of it and uneven lights.  I don't mind going to court over this but don't want to get held responsible for the entire 30k plus attorney fees.  Would a court force a consumer to pay the full amount for poor quality and tell us to live and learn?  Or would they say we are in our legal rights to expect a certain level of quality from a professional contractor and designer?    I do have pictures of everything and multiple emails and texts. 

any additional thoughts are appreciated

 

[belljr]

Was there and End Date on the original contract?

 

[boofatty]

thanks for the responses, fellas

looking over the contract (more like a one page proposal listing the materials and pricing), the only real legal language is at the bottom and states:

The above prices, specifications and conditions are satisfactory and are hereby accepted.  You are authorized to do the work as specified.  Payments will be made as outlined above.  In the event you account is turned over for collections, customer agrees to pay contractor's costs, expenses and reasonable attorney fees.  A time-price differential of 1 1/2% per month will be added to the outstanding balance if unpaid after 30 days from invoice date.

There are no payment terms on the contract but I know we talked about 50% upfront, 40% upon a fully functioning bathroom, and final 10% upon full completion. 

Our beef is with the quality of the work.  If its bad, can we tell them that we are not paying them the $30k and take us to court if you like?  Something like Trump has done with his contractors if he didn't like their work.  We paid a lot of money for what is supposed to be high quality and it clearly isn't.

as just one example and perhaps the biggest issue at this point:  we have a niche in the wall in the newly tiled shower, which consists of another tile and a marble shelf.  Well, the marble shelf has a saw cut taken out of the front of it.  Like when after they cut it and removed it, the marble hit the saw which was still turning.  Its less than a 1/2" cut but its clearly there.  So far, they have tried twice to fill the gouge with marble filler to make it less noticeable.  It still looks like crap and is completely unacceptable to me but to fix it means they have to re-tile the entire niche and possible the surrounding tile.  a nice bit of work but something that is non-negotiable for me.  if they refuse, can I just not pay them?  I haven't signed any completion form like they have been pressuring me to do for the last 6 weeks. 

issue #2 right now is we have 3 light fixtures over our double vanity.  The middle light is almost a full inch higher than the other 2 lights.  How hard is it to make sure the lights are level? 

there are more areas where the quality is lacking but this just seems like complete negligence to have a shelf with a gouge taken out of it and uneven lights.  I don't mind going to court over this but don't want to get held responsible for the entire 30k plus attorney fees.  Would a court force a consumer to pay the full amount for poor quality and tell us to live and learn?  Or would they say we are in our legal rights to expect a certain level of quality from a professional contractor and designer?    I do have pictures of everything and multiple emails and texts. 

any additional thoughts are appreciated

You are within rights to hold money until satisfied for the items you described above.  Send him a note with pictures; clarify what you want, when you want it and tell him you will hire someone to correct it at his expense if it isn't done within X number of days (generally 7-10 days is considered reasonable).  If he doesn't fix, then get a price to correct the work.  Send him the estimate and tell him one final time to fix the work or you'll hire the other guy AND deduct that expense from money owed to him.   Give him 2-3 days and if no action then hire the other guy.  He has no defense at that point if he were to sue.

If you don't hear back from him at all, keep sending the messages and hold the money indefinitely, but know that when he comes calling for his payment you will still most likely need to pay for services rendered minus your other expenses.

 

[belljr]

Has there been a lien placed on you?

http://www.nolo.com/legal-encyclopedia/contractor-does-lousy-work-files-mechanics-lien-nonpayment-now-what.html

 

[jomar]

no contract end date and no lien. 

I think the problem they are having is that I refused to sign their Completion form until things are fixed.  but even if they fixed the lights and niche shelf, I still have other areas that we're not happy with and there is no chance they re-do it. 

There is a half wall that is crooked. just barely crooked so it wasn't noticeable until they put on the counter and then the trim under the counter.  The trim stuck out on one end and they had to notice but went ahead with putting the shower glass on top of the counter. so now you can see a seam that is behind the glass at the bottom but sticks out a half inch at the top of the half wall.  They rigged the trim so it doesn't stick out anymore but the seam is still there.   to re-do something like this is a lot of work and I don't think there is any chance they do it.  so then what? 

I've basically given up on the half wall at this point but need the lights and shelf fixed.  still a poor quality bathroom overall but what else can I do?  they've already had to re-do the floors and the entire shower tile because the original job was so bad.  this job has to be a big loser from their end but the quality is that bad even now. 

 

[belljr]

In NJ if there is no end date it is not a valid contract.  You can write a registered letter, stating your case to contractor.  Then terminate I did this with a painter

 

[cashman88]

boofatty's suggestions are good.  But you should also pursue the filing of a complaint with the State of Michigan in the link I posted above.  Contractors fear getting a formal complaint filed against them with the state licensing department.  Complaints resolved adversely against the contractor are usually public record and can hurt their business and jeopardize their license.  Also, the licensing department will have someone come to your house and examine the work so you will have an independent opinion of the quality of the work.  If the state's licensing department sides with you on the substandard work, then you will have more than you need to effect bootfatty's suggestion to get another contractor to finish the work and charge your existing contractor the costs (or offset what is owed).  Also, the state usually has a fund available to pay for corrective work - it comes from the bonds/license fees that contractors are required to have/pay as part of their license.