What is Unfinished Work?
Unfinished work by a contractor often constitutes a breach of the construction contract, since parties who agree to hire contractors assume that the contractors will become legally bound to complete the project up to specifications. A contractor who accepts a contract assumes responsibility to complete the job as agreed. When a contractor tells a client "Trust me, I’ll take care of everything," it is not just a colloquialism or simple reassurance spoken from one person to another. In many cases, it can be considered an offer and acceptance, forming a contract.
The failure to complete a construction project up to the contracted specifications leads to liability. The contractor can become liable for damages for breach of contract when he or she fails to complete the project in accordance with the contract.
An unfinished project can create an unsafe situation for you, the property owner. A half-finished project can also prevent you from using the space as you had intended until it gets finished. Ultimately, the contractor may be liable for these circumstances as well.
Under Florida law, Florida Statute 713 . 02, a "contractor" is someone who "is in the business of contracting or offering or attempting to contract." Examples of this include a company that is actively providing services as a general contractor, as opposed to one that offers general contract services.
A contractor may also be defined as a person who is "an owner-builder, a private homeowner, a person registered by a municipality to perform work on his own property who enters into a contract…for the purpose of improving real property…" and is defined under Section 703.01(14) of the Florida Statutes.
There are many types of acts of unfinished work that can exist under a construction contract. For instance, a contractor could fail to complete a punch list, or a contractor could misrepresent completion of the project by marking it as complete in a change order. If the change order shows "Final Payment Due" for the contract amount but states that "retainage will be paid upon final inspection," then the contractor is not entitled to the full payment amount in the change order if the final inspection fails.
Get Proof of the Unfinished Work
A lot rides on the evidence that you’ll be able to put together in support of your potential claim against a contractor. When it comes to unfinished work, the type of evidence required will vary somewhat according to the type of work that wasn’t completed. If an inspection reveals the type of problems detailed below, it will be necessary to prove that specific work was unfinished and that the contractor was aware of it. You’ll generally be required to present photographs, documentation, communications with the contractor, and copies of any and all contracts and/or agreements between you and your contractor. Take the following into account:
For Landscape Issues If plantings were never completed—that is, if trees, shrubs, flowers, grass, or any other type of landscaping that was contracted for was never installed—the first thing that you’ll need is a verified list of the items that were to have been planted. This planting list should have been set out in your contract or agreement with the contractor. If it wasn’t, it’s likely that the agreement or contract specifically stated that the listed items could be found on a separate plan, such as a landscape plan for the project, and referenced as such. You’ll need to verify with the contractor that the listed items were not installed, and you’ll need to be able to show where they were supposed to be installed, via resort to the landscape plan or to the contract and/or agreement. You’ll also need photographs of the areas where the plantings should have been completed—and should have been completed to your satisfaction—for the purpose of introducing them as evidence of all the work the contractor was supposed to finish but didn’t. Photographs taken prior to the time that the project was originally completed can be helpful, but photos of the same areas after the fact are definitely required. Photographs should be accompanied by expert testimony, as well, to help prove that the items in the photographs were in fact to have been installed at the locations indicated—and not concluded elsewhere, as a matter of convenience or for some other reason.
If hardscaping was completely or partially installed in the wrong areas (whether driveway pavers or panels; stone, rock, tile, precast concrete, or embossed concrete siding; walkways; fencing; patio areas; or any other aspect of hardscaping), you’ll have to demonstrate that these areas were originally designed and contracted to be in one position and were not constructed there. As in the case of the other landscaping issues, you should be able to point to another dimensioned plan that was agreed to and signed by both you and your contractor to show exactly where the hardscaping was supposed to have gone. You’ll also have to show that this wasn’t accomplished, whether via expert testimony or otherwise. Illustration via photographs and plans will be required.
Exploring Legal Alternatives Before Filing Suit
Before filing a lawsuit against a contractor for unfinished work, homeowners should explore legal options that could avoid litigation altogether. Mediation and arbitration are two methods that may help resolve disputes with a contractor or subcontractor without going to court.
Mediation is a form of alternative dispute resolution in which the parties hire a neutral third party to facilitate a discussion of their problems in hopes of reaching a solution. If the parties reach a settlement, they can sign the mediator’s proposed solution. However, if an agreement cannot be reached, the mediator is unable to issue binding decisions on the parties. For mediation to be successful, the parties must be willing to openly communicate with the added pressure of a neutral third party and have the intent to resolve the issues at hand.
Arbitration is the most commonly used form of alternative dispute resolution in the construction industry, because the parties are usually contractually required to submit any disputes to arbitration in place of litigation. Thus, a construction defect lawsuit may be delayed until the contract’s requirement to arbitrate is fulfilled. Arbitration involves the parties submitting their evidence to a neutral third party who renders a final and binding decision on the dispute. The arbitrator’s decision alleviates the need to go to court by providing the parties with a fair and just decision on their dispute, but there is no appeal process once an arbitrator has issued a decision. It is imperative that the parties have legal counsel during this process to ensure that they are even required to submit to arbitration.
Both mediation and arbitration are ways to avoid litigation, but neither option relieves the parties from the burden of paying their attorney’s fees, as they typically would have done had they resolved the dispute in court. Perhaps the most important thing to remember about both of these processes is that they are designed to assist the parties in settling the issue without going to trial. Therefore, the parties should carefully consider whether mediation or arbitration will be required before engaging in either process.
Filing a Lawsuit in Court
Filing a lawsuit for unfinished work can be a lengthy and tedious process. For starters, you will need to register your case with the appropriate court for jurisdiction. This usually comes down to the amount of the claim. If your claim is under $25,000, it ought to go to small claims court, which does not require a lawyer to file a lawsuit. If your claim is greater than $25,000, you’d be better off filing in state civil court.
Regardless of the court you file in, hiring a qualified attorney is key. There will be legal fees involved in filing a lawsuit, dictating that the claim be significant enough to warrant hiring a lawyer. Though you may think handling the lawsuit on your own is best in terms of saving money (since an attorney will likely take a percentage of the settlement) , just know that the expertise and experience you gain from one or two lawsuits on your own is no match for years of education and training.
If you decide to sue, meet with a local contractor attorney. They’ll walk you through the information you will need to file a lawsuit. Also, they’ll ask you questions to determine if you have a case and whether or not it’s worth pursuing in the first place.
The contractor will have 30 days to respond to the lawsuit. If he or she responds, a settlement is usually reached prior to going to trial. If a settlement cannot be reached, both sides present their evidence before a judge. The judge decides if the case has merit and what the settlement amount should be.
Outcomes After Your Lawsuit
If you were to sue your contractor and the case went to court, what can you realistically expect? A strict legal opinion can only say so much, but the short answer is that there are a range of possible outcomes.
One of the most common of these is a refund. If the court finds that your contractor has not completed all of the work required by the contract, they will likely be ordered to refund part or even all of the money you paid them. The refund may even cover the cost of hiring someone else to complete the work.
However, there are some cases in which subcontractors can still accomplish the work without being formally entered into the contract. Your fellow subcontractor may end up doing the work if they agree to it and your original contractor is not able to do any more of the work that was assigned to them. There are regulations on this type of behavior so that your contractor cannot benefit from their own breach of contract. A new contractor may even need to be brought in if the current contractor is not interested in completing the project.
There are some other types of recoveries that the court may order. In the case of some breaches of contract, you may be able to get all of your losses covered. The court may grant repair costs or any additional expenses you’ve incurred to fix their work, such as the costs of hiring another contractor.
For example, if your $30,000 contractor does a shoddy job that forces you to hire another contractor to do everything from scratch for another $50,000, the court may grant you the $80,000. However, if you purchased a new chandelier to put in the room where the work was done, the court is not likely to make them repay that. They will only grant what is reasonably related to the problem.
In some cases, the contractor may ask the court to be able to fix their mistakes directly. For example, they may ask for permission to change the tiles in your bathroom themselves rather than pay someone else to do it. Depending on the severity of the breech, the court may decide to let them do so; however, they may find that the breech makes the contractor untrustable, in which case the contractor’s ability to address the situation would be revoked. If the contractor is simply untrustworthy, they may not be permitted to work on your home at all. Repairs are only considered when the situation is less serious.
If the damage was significant or you suffered from extraordinary costs, punitive damages may be awarded. This may be compensatory for things that the contractor did not do. The court might also give punitive damages to a plaintiff because the contractor behaved particularly badly. The judge might also find that the contractor did not believe that the construction defect was a problem. If he did not know the work was bad and you’re getting less money than you need, the judge may force the contractor to cover the damages out of their own profits.
Choosing the Right Contractor
One of the best ways to avoid unfinished work issues is to select the right contractor to begin with. There are several factors to consider when hiring a contractor, including:
Reviews: Read online reviews and ask people you know if they have hired the contractor or a contractor for a similar job. Ask for examples of previous work.
References: Ask the contractor for references and follow up with them to see how the job was completed and if they were satisfied.
License: While many contractors are licensed , others are not. Contractors that are classified as independent contractors may be unlicensed and not held to the same standards.
Job Comparison: If you’re interviewing a similar type of contractor, compare the work that they have done. Is the quality the same or similar between the contractors?
Checking these factors may help you avoid hiring an unfinished work contractor that will result in more work (and costs) for you.