Suing a Contractor

When hiring a contractor, such as for home repairs, most homeowners and contractors sign a legal contract which specifies the terms and conditions of their specific arrangement. This generally includes:

• A description and clarification of the exact work that is to be completed;
• The amount of money that is to be paid for the work completed; and
• A time frame which sets a deadline determining when all work is to be completed.

The most common lawsuits filed against contractors happen when the contractor fails to follow the agreed upon contract. Two of the most common examples of this would be missing deadlines, or failing to perform all of the work that was required by the contract.

Some other common causes for lawsuits against contractors include:

• The contractor completes the job, but unsatisfactorily;
• The contractor completes the job, but the work violates safety standards or local zoning ordinances;
• The contractor took advantage of the homeowner, such as by accepting a deposit or payment, but then failing to complete the agreed upon work; and/or
• The contractor overcharges, which could result in a breach of contract claim.

Entering into a contract with a contractor who then fails to meet their obligations, or performs disappointing work, could justify a legal claim against them. Lawsuits filed by homeowners against contractors are generally filed in civil court.

What Are Some Legal Claims That Can Be Filed Against A Contractor?

There are a few different types of legal claims that a homeowner may file against a contractor. The most common of these claims include:

• Breach of Contract Claim: Breach of contract refers to one party failing to follow through with their side of a contract. This frequently happens when the party has not delivered on their claims within an appropriate amount of time, or fails to perform at all. A contractor may be found liable for breach of contract when they miss deadlines, do not begin the project or partially complete the project, or fail to utilize construction materials that were previously agreed upon in the contract. There are four specific types of breach under the breach of contract umbrella:
  1. Minor Breach: A minor breach occurs when a party fails to perform part of the contract, but does not violate the entire contract. This is also referred to as an impartial breach.
  2. Material Breach: A material breach occurs when a breach is so substantial that it impairs the contract as a whole. Additionally, the core purpose of the agreement must be rendered completely defeated by the breach, which is sometimes referred to as a total breach.
  3. Fundamental Breach: A fundamental breach is essentially the same as a material breach. However, a fundamental breach is considered to be much more egregious when compared to a material breach.
  4. Anticipatory Breach: An anticipatory breach is a breach that occurs when one party notifies the other that they will not be able to fulfill the terms of their contract as agreed to. Anticipatory breach is sometimes referred to as anticipatory repudiation.

Breach of contract claims generally allow the homeowner to recover damages, such as a refund of the payments that they made to the contractor. Alternatively, they may receive a refund for the difference in costs associated with hiring a new contractor to complete the project.

• Fraud Claim: Contract fraud occurs when one party knowingly makes a false claim, while intending to trick or deceive the other party into signing the contract. A homeowner may sue a contractor for fraud if the contractor told the homeowner that the completed project would look one way, but the result is obviously different from the expectations that were set. Another example of this would be if the contractor promises only to use specific high grade materials, but uses less costly and lower quality materials after accepting payment for the original materials.
• Defective Construction Work Claim: Construction defects are those that reduce the value of a home. As such, this includes but may not be limited to:
  1. Design deficiencies, such as a roof not being built to code, which can result in water intrusion or inadequate support;
  2. Material deficiencies, such as inferior sheetrock in known damp areas;
     Construction deficiencies resulting from poor workmanship, such as plumbing and electrical issues; and/or
  3. Subsurface deficiencies, such as a home being built on hills or other unstable conditions, without any mitigating measures.

Can You Sue A Contractor Without A Contract?

To reiterate, it is important for both parties to put any agreements made to perform work into a written contract. However, if there was no written contract for services expected or rendered, you may still sue or be sued by a contractor. The reason that you can still sue a contractor without a written contract is because you could argue that an implied or oral contract was formed.

An example of this would be if you hire a contractor to paint your whole house, but they only paint 80% of your house. You may be able to have a court enforce your oral contract by having the contractor partially refund you, or by having them cover the costs of having the work completed by someone else.

Another example of this would be hiring a contractor to paint your house blue, but they paint it red. In this example the work was fully completed, but the work was not performed correctly. In this situation it may be hard to succeed in a lawsuit against the contractor without a written contract that specified the contractor’s obligation to paint the house blue.

Generally speaking, the person who is bringing the lawsuit will have the burden of providing evidence of some agreement made to perform the services.

How Do I Sue For Breach Of Contract?

Prior to filing a breach of contract claim, it is imperative to review the contract for any clauses stating whether a lawsuit may be brought.

An example of this would be how the contract terms may only allow the parties to enter into mediation or arbitration in order to resolve an issue. There also may be a time limit in place or a specific procedure that the parties must follow before they can file a lawsuit.

You should also determine whether there are certain elements present for the case. An example of this would be how most breach of contract claims generally involve proving the following four factors:

• That they have entered into an actual contract, and that the contract is considered to be valid according to state contract laws;
• That they upheld their end of the bargain despite the other party not doing their part;
• That the breach amounted to a material or substantial violation of the terms of the contract. It is important to note that minor and/or technical errors in a contract will not generally qualify for breach of contract claims; and
• That the losses they suffered were in fact caused by the breach, and can be calculated with a reasonable degree of certainty into a monetary damages award.

After both of these steps have been completed, and if it is possible, you should then file a breach of contract claim with the proper court.

Do I Need An Attorney For Suing A Contractor?

If you wish to sue your contractor, such as for a breach of contract, you should consult with an area contract attorney.

An experienced and local real estate lawyer can inform you of your legal rights and options according to your state’s specific laws regarding the matter. Additionally, your real estate lawyer will also be able to represent you in court, as needed, should you proceed with suing a contractor.