A contractor was hired to remove and replace windows. He started the job then stopped. He does not return calls or answer correspondence. If I complete the work will a judge rule I did not provide the contractor an opportunity to complete the work? In New England in the winter you need your building weather tight. I think it prudent of me to do so otherwise additional damage could occur. I think the number of telephone calls and letters requesting the contractors plant to complete the work is adequate. It sounds to me like you have a good handle on the situation. Keep your receipts of other workers you have hired, or supplies you have had to buy. I don't know if a judge will pay you for your time you as an individual spent, unless its money you lost because of being unable to go to your own employment. At least he will take back some of the money you paid the contractor to have the job completed.
Written contract? I hope so.
Word to the Wise: (I learned this too late, too). Never, ever, ever pay anyone in full for a job not finished...like in advance. You can guarantee the job will not be finished, specially if the fishing is good, the sun is shining and there's another job waiting...
This person had bad business practices...The BBB should be notified too, along with the courts.
Good Luck! you must send him a failure to preform note.
this must be a registered letter .
giving the contractor 72 hours to preform . if he dose not respond then you could take him to Court after you are done if the cost was grater than the cost he said he would do it for.
but just doing the job with out a requested note. you could have to pay him . so note fist then finish the job I am in the UK and you are probably in the US from your use of "jeopardize"? No matter- the law is clear on this.
Mitigation (the offering of opportunity to resolve) is a two way street.
Reasonable mitigation on your part is writing and telephoning and allowing the statutory time and give adequate notice of your intentions.
What that means in lay-speak is that if you have recorded proof (ie you sent the letters recorded so that you have proof they were received) of having sent letter which state that you intend to secure your property for the Winter and that he has 14 days (this is a legal standard- check what it is for you) to address your letter and he does not then he is considered to have AGREED to your terms as laid down in your letter. He cannot then, later, in court, argue he had no idea what you were going to do and if he had known he would have done this, that, and the other.
So- you have to mitigate, yes. So does he. If he does not respond to a letter laying out YOUR plan after a set period he is deemed to be in agreement.
Now- this is what I'd do. I would send another letter and I would tell him the exact dates of your telephone calls, their content (I KNOW he knows what their content was!) and what was agreed etc, what the dates of your letters were and their content etc and then I would close with your plan for securing your home and that he has X days to respond before you will a) carry it out and b) proceed with court.
This would then be signed by you and not tagged "Yours sincerely" but "Without prejudice" or the term used in the US to announce that your letter (with this phrase on it) cannot be used by them as evidence in court UNLESS you EXPRESSLY permit it. What this does it makes it clear that you will not be held in court for its contents.
You have then mitigated. This means that you have a) given him loads of time to fix the problem, b) given him a clear record of what was said and written and what you are going to do next, and (and this is important) you have c) ensured that the bill of the repair is not going to be increased by further damage to your home!
You see- if you just left it and, say, moved into a hotel and hoped to charge him for your stay and the rot to the timbers around the window openings then the judge would say you have NOT mitigated- ie kept the repercussions of the problem to a minimum.
So:
1. Write letter detailing what has gone before and what is about to happen and what time limit you place on his reply. This could be as little as 7 days (five working) if you can assure it reaching him swiftly.
2. Mitigate, ie repair the damage and keep the bills for that repair. Presumably the bill from another contractor? Remember that another contractor could be asked to be a witness and a "professional opinion" in the argument that you needed to secure your home as part of your side of mitigation. Make the contractor aware of the possible court hearing. And take photos. Of course you know this.
3. Be aware that winning a case against the first contractor is one thing but actually getting him to foot the bill for your mitigative exercise is another. While it will be ruled (it is to be hoped- depends on more than "justice" I am afraid... :-( ) that he is liable to repay you for the work you had to have done to fix his errors, he may simply not be ABLE to pay? Cost a legal battle out before taking that route. In the end you could be paying to find out that he cannot pay you back! And no- money in the pocket of a lawyer/court is not "setting an example" of the kind you want to set! Be aware that you could be better walking away. If so (and I usually fight if I can afford- and I have not yet lost, whether I walked or not!) then be reassured- what goes around, comes around. People never do another person a bad turn without it somehow biting them in the bum.
Good luck. |
