Should I Take My Contractor to Small Claims Court?

Weighing the pros and cons of dealing with a dispute over a nonperforming home contractor's work in small claims court.

By , Attorney

Whether your house is old or new, you're likely at some point to do major repairs or remodeling. That might involve paying a contractor a large sum of money upfront, including payment for supplies, with the understanding that you'd pay any remaining amount when the job was complete.

But what happens if you realize the contractor has been negligent in a variety of ways? Perhaps the tiles are not what you'd wanted; the workers are unprofessional; and/or the progress has been far slower than initially discussed. Should you take the contractor to small claims court to recover the amount you've paid already?

Sometimes, the contractor fails to fulfill that promise because of circumstances outside of his or her control; for example, a lack of available supplies or a negligent subcontractor who has caused delays. Other times, though, the contractor really is to blame, perhaps because of having hired unqualified workers or made needless errors in ordering supplies.

Don't Rush Into a Lawsuit

Running to court should not be your first step. A simple but serious conversation might ultimately more productive. Politely but firmly remind the contractor what was promised. Ask your contractor explain, from their perspective, what the problem is. Is the job more expensive or complicated than anticipated? Is it because the appliances or supplies you want aren't available? See whether you can work out the delay or problem.

Express Your Concerns in Writing

As a second step, assuming you do not want to hire an attorney, try writing a letter to the contractor. Clearly set forth what was promised (quoting the contract, if a written contract exists) and explain what is actually occurring. Is the work three months behind schedule? Did the contractor install maroon tiles instead of blue tiles?

Sometimes, a written statement outlining your concerns can get more traction than a conversation. This is particularly true if you include a line at the end of your letter stating that you reserve all your legal rights and remedies.

If All Else Fails, Try Small Claims Court

If the above avenues still get you nowhere, you might need to sue the contractor to truly get some attention. Small claims court might or might not be the appropriate venue. They typically have limited jurisdiction, meaning that the judges' hands are somewhat tied regarding what they can do for you.

For starters, small claims courts usually can only award money damages. This means that the judge cannot, for example, order that your contractor actually complete the work on your house. For this type of order, which is sometimes referred to as "equitable relief," you would need to file your lawsuit in a general trial court.

What's more, small claims courts usually have a monetary limit on damage awards: for example, no more than $5,000. This means that you cannot sue for an amount more than the limit set by your state.

Broadly speaking, a person should not file a lawsuit in small claims court unless it's an absolute must. As a practical matter, the work on your home will no doubt come to a halt pending the court hearing and decision.

It might be a more efficient use of your time and money to see whether your contractor could complete the job quickly for a bit more compensation. This might seem unfair, since the contractor probably agreed to a budget and schedule at the beginning, but you must weigh this against your alternative of protracted litigation.

Having said that, a benefit to small claims court is that you normally do not need to hire an attorney. The paperwork is fairly straightforward and is designed for an unrepresented litigant. This saves you money. And the filing of the lawsuit alone might scare your contractor into compliance with your original contract. So, if your contractor owes you less than the jurisdictional limit for a small claims lawsuit, and you would rather have the money than a court order compelling the contractor to complete the job, a small claims action might be your best solution.

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