Mehcanics Lien

[beth6845]

What is the name of your state? California

I entered into a contract with a contractor on 7-14-03. They were supposed to paint and prime my entire unit. The job was left unfinished on 7-16-03. The work is shoddy, bad and just downright sloppy. However, I paid him more than 30% down payment and agreed to pay him the balance upon completion. Now there is a dispute going on and I have very bad feelings for this person. He refuses to acknowledge that he did damage to my property and refuses to inspect the work that his workers did. It is a nightmare for me. Yesterday I got a Preliminary 20 day lien notice that if I did not pay the balance that I would have a lien put on my property. The question is, since the the work began on 7-14-03 and he signed a pink preliminary lien notice on 8-14-03, does he have any rights in filing a Mechanics Lien on my property since there's more than 20 days since the work first began. I am willing to pay him the balance which is $1675, just to have him not put a lien on my property---I cannot let that happen. So---Would it be to my advantage to pay him the balance. He is also saying that if I don't pay him he is going to charge me an extra $1000.00 for extra work, which he did not do. I know that I can report him, however, time frames with the lien notice and trying not to go crazy over this is preventing me from doing this. I still don't know if he actually filed the preliminary 20 day lien notice in court. I only got a copy in the mail by certified mail. I did not sign for it and I don't know who did. I hope I covered everything. Thanks for any advice.

 

[HomeGuru]

What is the name of your state? California

I entered into a contract with a contractor on 7-14-03. They were supposed to paint and prime my entire unit. The job was left unfinished on 7-16-03. The work is shoddy, bad and just downright sloppy. However, I paid him more than 30% down payment and agreed to pay him the balance upon completion. Now there is a dispute going on and I have very bad feelings for this person. He refuses to acknowledge that he did damage to my property and refuses to inspect the work that his workers did. It is a nightmare for me. Yesterday I got a Preliminary 20 day lien notice that if I did not pay the balance that I would have a lien put on my property. The question is, since the the work began on 7-14-03 and he signed a pink preliminary lien notice on 8-14-03, does he have any rights in filing a Mechanics Lien on my property since there's more than 20 days since the work first began. I am willing to pay him the balance which is $1675, just to have him not put a lien on my property---I cannot let that happen. So---Would it be to my advantage to pay him the balance. He is also saying that if I don't pay him he is going to charge me an extra $1000.00 for extra work, which he did not do. I know that I can report him, however, time frames with the lien notice and trying not to go crazy over this is preventing me from doing this. I still don't know if he actually filed the preliminary 20 day lien notice in court. I only got a copy in the mail by certified mail. I did not sign for it and I don't know who did. I hope I covered everything. Thanks for any advice.

**A: contact your consumer protection office.

 

[lwpat]

"I entered into a contract"

You should never sign a contract without having it reviewed by an attorney. You need to read the contract and see if there is a disput resolution clause. If there is you need to follow it exactly. Usually there are terms as to notification, etc.

Put in writing a list of the defective work and give him the opportunity to make corrections. Be specific - "sloppy work" is not specific. "Remove excessive paint runs from cabinets in bathroom" is specific. This is what is termed a punch list. Send it to him CRRR and demand corrections be made within ten days.

Make pictures of the defective work to show the judge. Usually the judge will favor the homeowner in this type of dispute so do not be afraid to stand up for your rights.

Always use someone for home repairs that comes with a recommendation. At the very least check with BBB.

 

[HomeGuru]

And the contract should be supported by plans and/or specifications noting the acceptable tolerances and standards.

 

[beth6845]

Well, I'm totally **rewed. There's no dispute resolution. Nothing. Except the color of paint that I wanted and he didn't provide that. No ending schedule. I decided to pay him the balance of the contract and he ran off happy as a lark. The only reason is he threatened to put a mechanics lien on my property and I can't afford it. Now--I'm cleaning up the mess he made and doing a better job than he could have done---only thing is I wanted a different color of paint. I would have to hire another contractor to paint my whole place for that. But, I've learned a lesson I hope in dealing with contracts and contractors from **ll. Anyway, can't say I have any recourse to take except to swollow the whole jest of what I just got into and let it be lessons learned. Thanks,

 

[HomeGuru]

Well, I'm totally **rewed. There's no dispute resolution. Nothing. Except the color of paint that I wanted and he didn't provide that. No ending schedule. I decided to pay him the balance of the contract and he ran off happy as a lark. The only reason is he threatened to put a mechanics lien on my property and I can't afford it. Now--I'm cleaning up the mess he made and doing a better job than he could have done---only thing is I wanted a different color of paint. I would have to hire another contractor to paint my whole place for that. But, I've learned a lesson I hope in dealing with contracts and contractors from **ll. Anyway, can't say I have any recourse to take except to swollow the whole jest of what I just got into and let it be lessons learned. Thanks,

**A: you can still sue his ass in small claims court for defective workmanship etc.

 

[lwpat]

"you can still sue his ass in small claims court for defective workmanship etc."

Maybe and maybe not. In some states final payment constitutes acceptance of the work unless it is a hidden defect.

 

[beth6845]

Please explain----WHAT IS A HIDDEN DEFECT?

 

[JETX]

Maybe and maybe not. In some states final payment constitutes acceptance of the work unless it is a hidden defect.

*** That is not true. Please provide a list of states that stipulate "final payment constitutes acceptance of the work".

 

[HomeGuru]

*** That is not true. Please provide a list of states that stipulate "final payment constitutes acceptance of the work".

**A: and lwpat, please post the CA statute or statute from any other state confirming your position.

 

[beth6845]

By paying him in full just cause I wanted to prevent a mechanics lien on my property mean that I have to live with this. I hope not.

 

[JETX]

No, your payment to prevent lien (perfectly understandable) does not relieve the contractor from his contractual obligation.

 

[HomeGuru]

No, your payment to prevent lien (perfectly understandable) does not relieve the contractor from his contractual obligation.

**A: and in addition, even if full payment was made, there are rights and remedies that you would have to litigate against the contractor with respect to incomplete and/or faulty work, failure to follow building plans and specifications, failure to conform to buidling and zoning codes, damages, breach of contract, express and implied warranty claims, state contractor's consumer laws.................

 

[lwpat]

While there was a written contract we do not know the terms so
for purposes of this discussion I am making the following
assumptions:

A valid agreement existed for the contractor to perform work
and for the Owner to pay for same.

Work was performed.

Payment was made.

There are no latent defects.

There has been no proveable notice given to the contractor
that the deviations were not acceptable.

UCC 2-607 is applicable to construction contracts and governs
the buyers acceptance of goods. An owner can accept non-conforming goods or by failing to protect his interest can be required to pay. The owner cannot sit idly by and allow non-conforming work. Reasonable and timely notice must be given and failure to give notice bars any remedy.

A party entitled to performance may waive strict performance.
This waiver can be can be established through constructive acceptance. Three general criteria are used to determine if the owner made constructive acceptance.

Was the owner aware or should have been aware of the deviations?

Did the owner give timely notice to the contractor that the
deviations were not acceptable?

Did the owner make final payment?

Here the owner was aware of the defects, made no proveable notice, and tendered final payment. Therefore constructive acceptance occured and any recovery against the contractor is barred.

See AIA Document A-201 4.3.5 1987 edition which is considered the industry standard with regard to final payment and FAR 52.246-12 with regard to acceptance.
Also Trustees of Ind. Univ. v Aetna Cas. & Sur. Co. 7th Cir. 1990 with regard to waiver of strict performance and Havens Steel Co. v Randolph Engineering Co. 8th Cir. 1987 with regards to failure to reject noncomforming work constituting constructive acceptance.

If you are not satisfied with a contractor's work you need to give immediate notice by CRRR in order to protect your rights. You should not pay for any non-conforming work. Most important you should have an attorney review the contract before you sign to be sure that the work is clearly specified and that your expectations are legally defined. For example in this case the exact color, brand and quality of paint could have easily been written into the contract.

Too many people want to run to the lawyers afterwards when
their problems could have been prevented by seeking legal
assistance first.

 

[Bigfoot]

One advantage of small claims court is to eliminate the cost of hiring an attorney to recover a small amount of money. I filed against a contractor doing work in my home. Guy didn't show up. Judge wanted to know why I wasn't filing for the entire cost of the job, and I stated that I wanted to be fair and have my money returned only for the portion of the work left incomplete. Judge ruled in my favor, paperwork turned over to the Clerk's office, money forced from the contractor, and a check was cut to me from the Clerk of Court's office. I didn't even have to worry about getting a 'bad' check. Please don't minimize the value of your options - it's your money and you were treated badly.