Legal Question in Construction Law in California

Re: Pool Contract

I feel very sorry for you instead of writing to the Internet you should be running, very quickly, to an attorney who deals in real estate/construction matters. Let him read over the contract and help interpret it for you. This is a holdup. Since work is already started it is my opinion he is bound by the contract and to invoke that clause would cause you damage. No court should, you hear me say should not would, hold against you. But you never know what's going to happen in a courtroom. It depends on who the judges, where you live, and so many other factors. It's his problem to the once the bid is excepted that is the amount most of the time that must be lived up to.i have been practicing law in this speciality for over 30 years in the san francisco bay area and if you wish to consult with me you can contact me at 925-945-6000.

Re: Pool Contract

Generally, the contractor is supposed to bid as accurately as possible. His failure to do so and his attempts to get you to pay for his misstake sounds unreasonable to me.

First, did you check to make sure that this person is licensed? How much of a deposit did they require? Is the "estimate" a part of the contract?

I think you should have the contract reviewed along with the "estimate". I am in Thousand Oaks and would be happy to discuss this matter with you.

J. Caleb Donner

DONNER & DONNER

LEGAL WARRIORS �

325 E. Hillcrest Drive, Suite 242

Thousand Oaks, CA 91360

Tel: 805-494-6557

Fax: 805-494-0990

email: [email protected]

website: www.legalwarriors.com

Re: Pool Contract

The previous reply of Mr. Donner�s is right in always check to make sure your contractor is licensed. If not, then you do not have to pay him anything, plus, you can get your money back. The allowable deposit is only 2% of the contract or $200.00, whichever is less. The Contractors State License Law does not allow a contract to have merely an �estimate� for the work provided. A contract must have the in writing: �� the work to be done and description of the materials to be used and the equipment to be used or installed, and the agreed consideration for the work.� (Bus. & Prof. Code sec. 7159 (c)). The contract cannot have just an �estimate�; the law requires an exact amount. Maybe one subcontractor mistake is understandable (but not your problem) but more than one seems to be a scam and now that he has started the work, he�s trying to pressure you into paying more money. Failure to complete a project for the price stated in the contract is a violation of the License Laws. (See Bus. & Prof. Code sec. 7113.)

Without seeing the entire part of the contract, it is hard to determine the context of the provision you have quoted. But, just looking at the provision, you first have to determine what �undue� means. The standard definitions for �undue� are: �Excessive, unjustified.� I believe the provision should apply only where there is an unexpected condition on your property that could not have been anticipated (such as overly expansive soil, or rock under the surface of the property.) These would be events that may arguably result in �undue� costs for the contractor. I don�t think that misestimating would be considered an �undue� cost for the contractor. The provision has only two possibilities:

1. The parties mutually agree to terminate the contract; or

2. The parties mutually agree to amend the agreement.

What happens if the parties can�t agree to do either? This provision is ambiguous and will be interpreted against the drafter of the contract, the contractor. I have litigated swimming pool contracts between homeowners and contractors and I believe that the contractor cannot force you to accept a higher price based on this provision just because he goofed on his bid. If he threatens to walk off the project or delay the project until you agree to pay, then immediately file a complaint with the Contractors State License Board (�CSLB�). They have forms on-line http://www.cslb.ca.gov/consumers/default.asp as well as a lot of other helpful information. If he refuses to continue, also look up his bond company on the CSLB website under his license number. Abandoning a project is a violation of the Contractor State License Law (Bus. & Prof. Code section 7107) and again, so is failing to complete the project for the amount stated in the contract.

I hope this helps.