What to Do If a General Contractor Completes Poor Work
QUESTION:
I signed a contract with a general contractor to have some renovation work done in my Massachusetts home. The contract had a clause stating the general contractor could not be sued and the general contractor would not be held responsible for any problems with the work done to my home. The actual renovation work on my home was done by a subcontractor, who was hired by the general contractor. I did not sign a separate contract with the subcontractor.
When the renovation was completed, I was dissatisfied and felt the work was done poorly. I hired an inspector to check the work and the inspector provided a report stating the renovation was not done to code. I need to have the renovation work re-done.
What are my rights? Can I take the general contractor or subcontractor to court? Do I have a claim if the work was not done to code? Can I hire another company for the new renovation, or must I give the subcontractor a chance to fix his work?
ANSWER:
Based on the limited information you have provided, it appears that you can sue the general contractor and subcontractor for negligence.
Let’s take a look at the issue of negligence. A claim for negligence arises when a party satisfies the four following requirements:
1. The party has a duty.
2. The party has breached this duty.
3. The party’s breach of the duty causes another party (person or business) to suffer a loss.
4. The party to whom the duty was owed can show that they have suffered a loss/damages.
In this instance, the contractor you hired and signed a contract with appears to satisfy all four elements of negligence:
1. The general contractor had a duty to provide you with the contracted for work and for the work to satisfy the industry standards for workmanship (that is, the work was to comply with the state building code). By hiring a subcontractor, the general contractor incurred another duty – to make sure the subcontractor performs the work to industry standards.
2. The duty — to provide you with acceptable standards of work — was not met. In fact, both the general contractor and subcontractor had a duty to you and both breached that duty.
3. The breach of that duty caused you to suffer a loss. Your renovations are not done to code, and now you must incur the cost of having the work redone.
4. The building inspector’s report is proof that the work was not done correctly and so, the costs to correct the shoddy work are damages that you have suffered as a result of negligence of the general contractor and subcontractor.
Also, please be aware that the relationship between the general contractor and the subcontractor is governed by the principles of agency law. The laws of “agency” are important in cases like these, and these laws are what make the general contractor liable for the negligence of the subcontractor.
Understanding Agency and Work Relationships
In Massachusetts, all workers are considered “employees” by law, unless the worker meets several important factors – including offering services not within the employer’s usual course of business. This is important since a general contractor usually treats their subcontractors as independent contractors (not employees) for insurance and tax reasons. When a general contractor offering renovation services hires a subcontractor to do renovation work in Massachusetts, that subcontractor is an employee – no matter how the general contractor defines the working relationship. This issue of misclassification carries severe penalties and can be used as leverage by a homeowner to negotiate a favorable settlement with a general contractor.
Curing the Defective Work
Please be aware that the idea of “curing” is a breach of contract concept. As a general matter, the law says that a party can cure a breach (undue the breach) within a reasonable period of time. The idea of “curing” a breach is also commonly included in construction agreements so that all parties know with certainty, how long the “reasonable time to cure” will extend after a breach.
You may need to reexamine your construction contract and speak to an attorney to determine whether a reasonable time to cure was defined in your construction contract. You may also want to hire a new contractor to help determine how much it will cost to remedy the current work (bring it up to code) and to determine loss of property value, if any. From a construction litigation strategy perspective, hiring a new contractor/construction expert to provide an estimate to remedy the negligent work is generally the only way to prove construction services are faulty and to establish your monetary loss (cost to remove faulty work, redo the work, loss of property value, etc…)
In addition to the above, there may be additional issues with your construction contract such as the contract fails to comply with the Massachusetts’ requirements for a residential construction contract, which could give you an additional advantage in fighting back against sub-standard work.
For additional Massachusetts construction law information, please contact Calabrese Law Associates. Our Boston office works with many construction contract issues and can work with you to develop an action plan. In many cases, our attorneys are able to help prevent costly and time-consuming construction disputes and litigation. When disputes and litigation do arise our attorneys have the dispute resolution and trial experience to effectively represent your interests in court.
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