A few months ago, I hired a contractor for $1,000 to redo the tiling in my kitchen. I asked for a specific light blue tile, and also asked that the project be completed within three weeks. He promised that it would be.
Two months went by before the project was finished, and only then did I discover that he used the wrong tile! It’s white instead of blue, and appears to chip very easily.
I was about to sue him to get my money back, but then he offered to fix his work and also do some additional work around my house at no cost. Should I accept his offer, or sue?
One of the advantages to settling a dispute outside of court is that you can craft creative solutions. While a small claims judge could only award money damages, you can negotiate with your contractor for other types of compensation – here, additional construction work.
The problem, of course, is that you don’t have much basis to have faith in your contractor. It seems as if he ignored your oral agreement in three important ways: first, he used lower-quality materials than you expected; second, he installed the wrong color tile; and third, he took about twice as long to finish the job as you originally negotiated. You need to consider: Is this actually someone whom you want to do additional work on your home? What prevents the same types of miscommunications from reoccurring? Remember the old adage, “Fool me once, shame on you, fool me twice…”
If you ultimately decide that you do want to accept his offer, consider what happens if he fails to perform, and take steps to protect yourself accordingly.
Instead of relying on an oral agreement – which can easily devolve into a "he said/she said" battle in court – you should put pen to paper. Tell your contractor that you’ll accept his terms, but that he needs to make his promises in writing, with specific details and deadlines.
The contract need not be drafted by an attorney; a simple Word document articulating the key terms of the deal with a signature for both you and your contractor (and/or your contractor’s business entity name) is sufficient.
The key terms would include: the total price, the schedule of payment, the scope of work, any specifics regarding the materials or labor, and the schedule the contractor agrees to maintain. (See Nolo's article, "Sign a Contract When Hiring a Home Improvement Contractor," for details.)
You should also include a clause specifically stating that if the terms of this contract are not met, you reserve all rights to sue your contractor for the original failed tiling project, in addition to any additional damage he causes.