Legal Question in Construction Law in California

Re: sub contractor causes on site damage

Lisa,

There is really no such thing a "contractor standard." What the sub needs to do is agree to repair the floor to bring it to where it was before construction or to a point at which you are satisfied. He, of course, can file a Mechanics Lien on the property if he feels that he has not been paid. However, you haven't said if you have any sort of written agreement, even a Work Order with this sub. I suggest that you tell him you will hold back 10% of the money until final completion of the entire project, including repair of the floor. Holding back a portion of fees is normal in the industry and he should not gripe about that. If you and he cannot agree on the extent of repair, consider some sort of arbitration with the Better Business Bureau or even a local, agree-upon, general contractor. No sense getting an attorney involved if you can avoid it.

Re: sub contractor causes on site damage

I can't agree with Mr. Snyder completely. There is an "industry standard". What the contractor is talking about is what is normal and customary in the trade. In other words, he doesn't have to build it to the highest levels possible, only to what is standard in the trade. By like token, he can't drop below the standard. I've seen quite a few contractors who try to palm off sub-standard work as standard work. I can't tell you how often I've heard, "Everyone does it that way." Well, "everyone" is going to get sued for deficient construction if it isn't to an acceptable standard. On the other hand, I've seen homeowners insist that the contractor rise to a standard that is ridiculous and unattainable.

What is that standard? It depends on what is being done. Almost every trade has some literature and defining standards. Building codes also help to define what is standard. There are a lot of experts out there that make a living defining what is standard. The most vexing question is what is cosmetically acceptable. On close calls, this is a question that can only be determined by a judge or jury. But if it's so close that it comes down to a judge or jury making the determination, then somebody needs to be more reasonable.

I wouldn't worry about the contractor filing a lien unless you plan to re-finance or sell soon. Even then, you can always bond around the lien. By the way, the majority of contractors who record a lien never follow through on them. Mechanics liens are only good for 90 days. If a lawsuit isn't filed within the 90 days, the lien is void (although title companies still demand that they be removed).

Withholding a flat 10% as suggested by Mr. Snyder could get you in trouble. By law, you are entitled to withhold 150% of the amount legitimately in dispute. This could be more or less than the 10% suggested. It's best to abide by the rights the law gives you. To determine how much is in dispute, you'll have to get another contractor to give you a price on how much the floor is going to cost to fix. Multiply this by 1 1/2 and you have the amount you should withhold. Don't make the mistake I see so many homeowners make: withholding way more than you're entitled to. For example, I have seen times when homeowners will withhold $100,000 when there are items in dispute that only total $1000. The homeowner can get whacked pretty hard if they follow this tactic.