Should I Take My Home 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 (Benjamin N. Cardozo School of Law)

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 is 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 slower than initially discussed. Should you take the contractor to small claims court to recover the amount you've paid already? Here are some considerations regarding whether to file suit, and where to do so.

Talk to the Contractor About the Problem

Sometimes, contractors fail to fulfill promises because of circumstances outside of their control, such as a lack of available supplies or a negligent subcontractor who has caused delays. Hopefully you can keep the communication lines open, and find out about such issues.

Other times, though, the contractor really is to blame, perhaps because of having hired unqualified workers or made needless errors in ordering supplies. In some situations, you might want to hire another professional to give you a "second opinion" about the work that's been done so far.

In any case, 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 that 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 to the Contractor 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?

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 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.

If I Win in Small Claims Court, How Will I Get the Contractor to Pay the Judgment?

It can be frustrating to win a lawsuit only to realize that you still need to chase after the deadbeat contractor. Most established businesses will pay their judgments after losing in court, because they want to maintain favorable relationships with banks and lenders, and avoid one-star reviews on various websites.

For some smaller businesses, sole proprietorships, or individuals, though, this isn't necessarily the case. Perhaps they simply don't have the cash on hand to pay the judgment. Or they're hoping you will eventually give up on pursuing them. You might hear nothing from them, even after attempted contact.

If your contractor finally picks up the phone or shows other signs of being responsive, you might try working out a payment plan, whereby the contractor agrees to pay the judgment over a series of months. The contractor might appreciate this courtesy, and it could make the large judgment seem manageable.

If your contractor continues to be non-responsive, your calculus is more difficult.

You can return to your county clerk and ask about your state's judgment-enforcement process. In most states, this involves either filling out a garnishment application or sending an informational subpoena to your contractor forcing them to disclose their assets. This will require at least one additional notice to your contractor saying that you really intend to collect on your judgment; this alone might scare them into paying.

If the contractor still doesn't pay up, and assuming the court ultimately approves your request to garnish or "attach" certain bank accounts or property, you'll likely need to retain a third-party collections company to pursue those assets. Such companies typically charge fees; either flat fees, or a certain percentage of whatever they collect. This will be in addition to court fees (usually not too onerous) that you'll pay for the filing of the garnishment application.

Also consider your time and effort in filling out these documents and communicating with the court and the collections company. All of this is time-consuming. Think carefully about whether the amount of your judgment is really worth all of that time and energy. In this example, for $1,000, you might answer that question in the negative. But if you have a judgment for $5,000, perhaps you might feel that the time and fees are worthwhile. You might, after all, be ultimately successful.

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