Legal Question in Construction Law in California

Re: Job abandonment, defects & recovery

You bring up several issues in your message so I will attempt to answer them, serially.

Before I do, is your contractor licensed? In CA, the general rule is that unlicensed contractors "work for free" even if their work is "textbook." Furthermore, you alluded that you had a contract on this project. The resolution of your dispute will likely depend heavily on that document, so have an attorney review and advise more thoroughly than what is presented here.

Now, as to your issues: The first one you raise is that of abandonment. Abandonment of a construction project without legal excuse is a cause for disciplinary action under BPC �7107. Failure to complete a project is also cause for such action under BPC �7113. However, the main issue in your case is whether the contractor has actually abandoned your project. It does not appear that he has. He shows up, albeit sporadically and with inexperienced labor. You likely have a better claim for, "breach of the implied covenant of good faith and fair dealing", possibly even breach of contract. Basically, a breach of the covenant is "lawyer speak" for a contractor willfully rendering imperfect performance or lacking diligence.

The second issue you raised are extras. Generally, extras are governed by express terms in the contract.

If the contract reserves the right for the owner to make changes during construction and if the magnitude of the changes is not excessive, then the contractor is legally obligated to comply with the request.

If a change is major, however, the contractor may contend that the scope of the change is beyond what the parties could have contemplated at the time the contract was signed, thus excusing performance. Although the contractor may be required to comply with a change order, it may dispute the amount by which the contract price is to be increased or reduced as a result of the change.

However, walking off the job pending resolution of the extras is a risky proposition for a contractor as the contractor could be subject to delay penalties.

As for the defects, there are many potential theories of liabilities. However, if you know of the defect now, your best bet is to have them corrected by your contractor before he proceeds. Otherwise, they will be more costly to repair once the structure is sealed. If he refuses, then you likely have a material breach of contract on the contractor's part. This will allow you to terminate the contract, find a new contractor, and seek the difference from the original contractor.

Bottom line, construction law is a complicated area so have an attorney review your contract and draft a letter to the contractor pursuant to the notice terms of your contract or construction laws/statutes.

Good Luck!

Re: Job abandonment, defects & recovery

You need to start giving your contractor written notices. You should use an attorney for this.