Home Contractor vs. Homeowner

I am not in the habit of endorsing contractors or contractor referral services, but I do like to make the public aware that they exist. I recently had a problem with a garbage disposal and contacted servicemagic.com. They responded with the names of three contractors in my area and I could read reviews of their services online. At least one or two called me right away. As it happens, I solved the problem myself, but I was impressed by how organized and efficient they are. A potential client had a similar experience with servicemagic when looking for aluminum siding and roofing contractors. They responded quickly and he was pleased with the service. I am going to follow their website and review their advice from time to time, but so far, I am happy to report that customers have been satisfied.

How many times have you been advised to check someone's references? How many times were those references less than glowing? References are only as valuable as the information they provide, so the burden is on the homeowner to ask good, specific questions that will let him know whether the proposed contractor is a good match. So, here are some questions to ask, in no particular order: 1. Did your job come in according to budget? 2. How often did the contractor come to your home? 3. How often did the crew come to your home? 4. If the contractor was not there, was there someone with the authority to answer your questions and make decisions? 5. Were change orders in writing? 6. Did the job finish on time? 7. If not, why? 8. How did the contractor leave the site at the end of the day? 9. Did you feel it was safe? 10. Did the contractor obtain necessary permits? 11. What hours did the contractor work? 12. Did the contractor have other jobs going at the same time that you k...

I have written about suing a builder for new construction previously, but I would like to spell out in more detail the remedies that a homeowner (or even commercial construction for that matter) may have when a dispute arises. As I have now stated over and over, the place to start is with a good contract. Particularly when new construction is involved, there are usually benchmarks for progress payments. Homeowners should be particularly vigilant regarding those benchmarks, and builders should be clear about which work needs to be completed and whose approval is required before the payment is made. On the builder side, it is nice when those payments are automatic upon inspection (bank or town should be specified). The homeowner may want to include a provision that he/she should be allowed to inspect before payment is issued, but the builder should be able to protect himself at that point so the homeowner cannot have full power to determine the definition of what constitutes completi...

We have all heard how construction/renovation projects take longer than we think they will. How you're lucky if they're done by a certain date. How you should be thrilled if your contractor actually shows up. The question is, when is delay par for the course, and when does it rise to the level of unreasonable or become actionable (resulting in an actual claim against the contractor)? Of course, the place to start with all of this is the actual contract. Homeowners and contractors should spell out how often the workers will be on site and for how many hours. There should be minimums, and everyone should be clear about managing expectations. As an aside, a person should always be designated as the point person for the job when the contractor is not on site. Both sides should know what that person's authority is, and how to reach the GC if that person is not authorized to make decisions. What should a homeowner do, however, when it is clear the project is not on track;...

For those who are wondering why I am posting so much this week, it is because I am away on vacation. I would like to take this opportunity to ask those of you who read my blog to ask questions and suggest future blog posts. This post is not directly about contractor or homeowner issues, but I have been thinking lately about the stress of dealing with a lawsuit. Parties vary regarding their involvement in their own disputes. Some are happy to hand their claims over to an attorney and check in now and then, and others want to be directly involved and strategize about their claims. However, no matter how much or little involvement you choose, you should realize that lawsuits are extremely emotionally taxing. First of all, the financial burden cannot be underestimated. Lawsuits are unpredictable. Even if your own attorney is prudent about expenses, he or she has no control about how the other side conducts themselves. Opposing counsel and/or parties can make life miserable and driv...

Unless a contractor has a provision in his contract that entitles him to attorney's fees when pursuing a claim against a homeowner, at least in Massachusetts, the contractor will be forced to pay his attorney's fees whether he is choosing to arbitrate or litigate. If the homeowner opts to file with the Home Improvement Contractor Arbitration Program in MA, then neither side is entitled to attorney's fees. So, let's assume the following scenario: The contractor has fully performed, and the homeowner now refuses to make the final payment, or the homeowner is withholding payments, or the homeowner has unlawfully terminated the agreement (the contractor should have the terms for termination included in her contract). What should the contractor do? First of all, do not underestimate the stress and impact of a lawsuit (the subject of an upcoming post). It should always be one's goal to try to resolve disputes without a formal proceeding. Contractors should attempt to comm...

I have recently been thinking a great deal about when a homeowner should hire an independent expert to review the work that a contractor has done at his/her home. This usually arises when the quality of the work has come into question. The homeowner is concerned that some items may need to be re-done, and subsequent contractors may have alarmed the homeowner with sweeping statements about extensive repairs. In addition, the renovation work may have failed the rough inspection, or the building inspector may alert the homeowner to violations of the building code. I used to tell homeowners to get two or three quotes from subsequent contractors. If the quotes were all similar, then the homeowner would be able to verify the problems. However, as with new hairdressers or dentists, each contractor has his or her style, and there is a fair amount of subjectivity in looking at someone else's work. The advantage with an independent home inspector is that he has nothing to gain from finding ...

Once the relationship between a home contractor and a homeowner has broken down, and a demand letter has been sent, a decision must be made about how to proceed if the dispute is not resolved. At this point most homeowners and contractors are fairly anxious. They are wondering about what happens next, and what it is all going to cost. The steps I take in these situations is always the same, but the outcome will vary. First, the homeowner side: 1. What are my damages? I have posted on damages before, so I am not going to explain how to determine damages in this post, but this is the most important question. For claims less than $5000.00, one should consider small claims court or in Massachusetts, the Home Improvement Contractor Arbitration Program. For claims between approximately $5000.00 and $20,000.00, one should consider the Home Improvement Contractor Arbitration Program. The reason is simple; the filing fee is low, the Office of Consumer Affairs and Business Regulation admin...

In Massachusetts, a homeowner does not have to make the final payment until the work is done to "the mutual satisfaction of the parties." What is a contractor supposed to do when the homeowner is never quite satisfied, or the punch list of items to be completed never seems to end? I have seen this situation occur with my contractor clients, where homeowners take advantage or have unrealistic expectations about when a project is complete. How can contractors avoid this problem? 1. Start with a a good contract that spells out the work to be done and the materials to be used, IN DETAIL! 2. Make sure that all change orders are in writing, and adjust the completion date accordingly. Make sure both the contractor and the homeowner signs off on all change orders. 3. Designate in the contract who the decision makers are and make sure they sign the contract and all of the change orders. 4. When the job is complete, have the homeowner create a punch list and discuss each item in detail...

I was so pleased to read the question listed above as comment on a recent blog post. Please continue with questions, and I will be happy to answer them. There are a number of reasons to want to know whether a builder/contractor is incorporated. In general, the reason to incorporate a business is to protect one's individual assets from creditors. For that reason, and others, many businesses incorporate. A corporation is like a separate individual. So, if you obtain a judgment against a corporation, you can only collect against corporate assets. Sometimes contracting companies own trucks or equipment, but in general, they do not own valuable assets. So, before investing money in a claim or lawsuit, it is important to figure out if there is anything to collect against at the end of the day. Of course there are other reasons to incorporate as well. There are tax implications, branding and marketing reasons (to protect a particularly catchy name), and other financial and busines...

Today I was thinking about that fact that I approach most of my home contractor cases the same way, but the path that is followed after the initial steps will vary depending on a number of factors. It also occurred to me that I frequently send homeowners off with a homework assignment before I even meet with them, because they call me before being fully cognizant of their potential damages or without knowing what they want to do next. More specifically, I get a call like the one I received today where the contractor delayed and delayed, violated the building code by not pulling permits, and then abandoned the job. The homeowner in this case did do some of his homework before calling me, so it was easier to figure out a course of action. Here are some of the steps to take: 1. Find out if your contractor is registered with the state if you have not done that already. 2. Find out if your contractor is incorporated. 3. Get quotes for completing the work. 4. Have the work evaluated for defe...

I have promised to post about some important home contractor cases in Massachusetts, and the Reddish case was decided in June 2006. In Reddish, the contractor installed a pool and violated a six-foot side lot setback requirement contained in a local zoning by-law. The court held that this was a violation of the Home Improvement Contractor law in Massachusetts that states that contractors must comply with the building laws, and therefore a violation of the Consumer Protection act, as well. The important point to note about this case is that the contractor relied on the homeowner's statement that the property line was at the location of a fence, when in fact, it was not. The contractor deviated from the plans based on the homeowner's "say so," and was then held accountable for this error and was forced to pay the plaintiff's attorney's fees as a result. Therefore, contractors should beware, and make sure that the property has been properly surveyed, that the pl...

Another post by Jerry Soloman, OSHA attorney: Industries are recognized and treated by OSHA as “High Hazard” if their injury rates per 100 workers are higher than the norm. Residential construction and Landscaping are among the industries with the worst injury rates. That is one reason why OSHA has targeted residential building for special emphasis and a greater number of inspections. Last year OSHA made around 1360 inspections of residential building contractors in about 25 states controlled by federal OSHA. They issued fines totaling over $3.2 Million. The most frequent citations were for fall protection; scaffolds; ladders; head protection; hazard communication and electrical. It is hard for a residential builder to follow all the rules and still make money on a job. But think about thousands or even 10s of thousands of dollars in penalties if OSHA catches up with you. Even worse than an OSHA inspection and fine, what if someone gets hurt or killed on your jobsite? It happens...

Today I was speaking with a potential new client, and it occurred to me that many homeowners have no idea what to do when they have problems with a contractor. They feel helpless as the contractor has control over what is happening to their home, and they do not know how to deal with the situation when a contractor is doing poor quality work. There are some things a homeowner can do that will help a lawyer understand the details of the situation. First of all, if there have not been any inspections done, the homeowner should call the local building inspector and ask him or her to come and evaluate the work. If work is not up to code, that strengthens the homeowner's case and let's him know if work needs to be re-done. In addition, the homeowners should call contractors to come and give quotes for the cost of completing the job. This is one way of determining the amount of damages, and helps a lawyer decide the right approach to the claim. If a job was supposed to cost $10...

Here is a guest post from Michael Radner, Landscape Architect: There are many reasons to improve the landscape around us. Many studies have determined that shoppers spend more time and money in stores shaded by street trees. Property values of single family or multi-family homes are as much as 15% higher when they are set in well-designed, well-maintained landscapes. Test scores go up when school classrooms have visual access to trees and open space. The mental and physical health benefits of healing gardens in hospitals is well documented, and even crime is reduced in neighborhoods planted with trees. Yet many home and business owners don’t know how to get started when the need or desire for landscape improvements hits. There are three basic options for those who don’t want a “do it yourself” job. 1. Hire a “Design/Build” company to take you from design through construction. This is an attractive option, as it gives the consumer or builder a one stop shop for services. These a...

Most of the posts from the homeowner side in this blog involve renovations or additions. As such most of these disputes involve contractors who are covered by the Home Improvement Contractor Law, or M.G.L. (Massachusetts General Laws) c. 142A. What should a homeowner do, however, if he or she is involved in a dispute with a builder? As I have said so many times before, a good contract should actually prevent disputes and spell out the procedure for dealing with problems before they arise. Unfortunately, builders and homeowners alike often undertake large projects without consulting with a lawyer (who focuses on these things) and they then suffer the consequences when a disagreement occurs. If homeowners develop problems with their builders, they should start off with a demand letter outlining the problem, and the solution that they would prefer. If the claim is in Massachusetts, the demand letter should be under the Consumer Protection statute. If the issue cannot be resolved, then th...

I recently attended the annual showcase event sponsored by The Blue Book, where contractors and subcontractors can meet and exchange information. The Blue Book is really a book, that lists tradespeople by their professions (including lawyers) and is a great resource for finding help when needed. The event was quite lively and well-attended, and numerous types of companies were represented. For example, there was a construction company whose specialty is constructing dentists' offices. These companies do all kinds of construction, from commercial to residential to renovations. So the next time you are looking for a subcontractor, check out The Blue Book. Here is the website: http://www.thebluebook.com

It is only natural for a contractor to want to get paid for his or her hard work on a project. When a homeowner refuses to pay, it can be for any number of reasons, and they are not always reasonable. The homeowner may expect extras to be thrown in without additional cost, or may have standards that are unrealistic. He or she may also not recognize that reasonable delays occur. In any event, contractors will frequently decide to sue homeowners after trying to collect. However, in Massachusetts, contractors run a huge risk by filing suit. Unless their contracts are in compliance with the Massachusetts Home Improvement Contractor Law, they may be exposed to liability under the Consumer Protection Act, M.G.L. c. 93A. This could subject the contractor to double or treble damages, attorney's fees, interest and costs. So, contractors should make sure, in advance, that they are properly registered, and that their actions are in compliance with the law. In addition, they should ha...

I once had a construction lawyer say to me, "If there were one thing I would say to both contractors and homeowners to prevent problems during construction projects, it would be, 'All change orders should be in writing!" One day, I will go through my active cases and figure out how many of the disputes could have been prevented if the parties were to follow that rule. Homeowners frequently believe that items are included or will not cost extra. Contractors submit bills after the fact for "extras" that were unanticipated. Then the misunderstandings occur. Change orders should include a full description of the new work to be done, the types of materials to be used, and how the change will affect the expected completion date. They should spell out the additional price for labor and materials. Finally, they should be signed off on by all parties. If subcontractors are to be used to affect the change orders, I would note that down as well. It does not imply dis...

Maybe home improvement workers are immortal. Look at the attached photo. These guys are on the third floor. Maybe they are not affected by gravity. If you cannot spot OSHA violations in this picture, you need to get some training. Protection against falls is something OSHA emphasizes all the time. It is one of their biggest concerns. They look for fall hazards on every construction inspection, and they almost always find them. Between October 1, 2006 and January 31, 2007 8 workers died from falls in New England. Violations of fall–protection rules are among those most frequently cited by OSHA for residential construction. One worker fell to his death while cleaning gutters. 4 workers died in separate incidents while performing residential roofing work. In one recent fatality a worker fell 2 stories from a roof when his step ladder slipped. (Did you notice the unopened step ladder in the photo? It was used for access to the roof. It is very unstable when used folded up. It would not tak...