Court date next week---Do I Have all my bases covered?

What is the name of your state (only U.S. law)? NY

Not looking for legal advice--Just opinion based on experience with small claims.


Situation- I Made a final offer on a house last November saying that was the most I would pay because the new roof was not properly installed and leaking. The owner, at the time, said, "Since closing will take a few months, if you pay us $3,500 more than your final offer we will take care of the roof." This was all verbal between us via real estate agents. We put a contract together with a clause that states "Seller agrees to make the necessary repairs to the leaking roof on the second floor off the master bedroom.” It did not state a dollar amount. I was going to have to pay for the roof whether it was upfront or after closing, so I agreed thinking I would have the piece of mind of the roof being repaired to prevent further damage sooner. They had a contractor come and do, well, I am not sure exactly what he did but it looks like he put a few screws in it and billed them $900. Roof is metal and previous owners were older.

Closing was Jan 14th and since it was winter, I did not notice that not only is the roof still leaking in the exact same spot, it is worse. I called the contractor they had hired and they said they do not guarantee their work and would be willing to give it another shot for an additional charge. My contract is with the Owner and theirs with the Contractor. I called the previous owner and he said he didn’t know what he could do. He said he hired someone to fix the roof as agreed. I told him the roof was not fixed.

I have temporary fix to prevent water from coming through and have a small claims case next week. Since our real estate contract did not state a dollar amount, I cannot sue for the $3,500 but rather for the cost of the actual repairs. I realize it is 9 months since closing, but I have copies of phone bills where I have called him throughout February and letters back and forth up until 2 weeks ago.

One concern I have is at closing I had to sign a hold harmless agreement. I do not believe this would void clauses in our contract but just want to be sure. I believe this is for general items in the house: ie hot water heater failed and I replaced it at my own expense.

Evidence I will present:
-Signed contract stating that the seller takes responsibility for the roof repairs.
- 2 quotes from contractors (one is $2,850 and the other $3,200)
- Copies of all letters I sent
-Proof of delivery of all letters
-Pictures with dates in February and March that show water leaking

Do I have all my ducks in a row? My lawyer seems to think so, but I just want to be sure as my lawyer said he does not see a need to be there since the dollar amount is not significant. I do know the seller will likely have their lawyer.

I have filed for $2,850, but can I add damages such as Time off for work for court both to file, go to court and meet contractors, fees paid to my lawyer for advice,etc?

You sue for actual damage cost and interest.

Time is on you .

Lawyers are optional in small claims .

Again that cost is on you .

A Guide to Small Claims Court

No question but what I’d go for the full $3,500 plus statutory interest. * That’s what you had to pay for the sellers’ promise to fix the roof and they didn’t perform as agreed. Simple breach of contract.

Suppose you took your vehicle in to a shop and paid $3K to have the trany replaced and the shop installed a used transmission that didn’t get you home.

Would the shop be responsible to refund your money, or could they reasonably argue that they over charged you (you could have had it replaced for $2.5K down the street) hence they are entitled to keep the $500 difference?

The rip off is the same. The difference is in the amounts.

With the approach you have in mind (actual cost of repairs) your sellers stand to rip you off for only $450 rather than the $2,600 they had originally hoped for.


[*] I recognize that the sale agreement doesn’t reflect that the total sale price included this extra $3.5K for the roof work, but you and perhaps your broker can testify to it. And if the sellers show up, are they going to perjure themselves by denying it?

Plus there may be some documents lying around showing the increased price.

Moreover, the rules of evidence are not as stringently adhered to in small claims. At least not in this neck of the woods.

But to cover yourself what I suggest is that in your petition or claim ask for the $3.5K, OR IN THE ALTERNATE, what must come out of your pocket to do the job properly.

PS

Inasmuch as you have already filed your claim, at the end of your evidence move to have your petition, claim, complaint - or whatever the small claim pleading is called in New York - amended to conform to your evidence.