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.

Question

My house is several decades old, and a few months ago, I decided to breathe new life into it with a kitchen renovation. I chose a local contractor to handle the renovation, which was supposed to include new tiling, windows, and appliances. I paid the contractor several thousand dollars upfront, including payment for supplies, with the understanding that I’d pay any remaining amount when the job was complete. But the contractor has been negligent in a variety of ways. The tiles he ordered are not what I wanted; the workers are unprofessional; and the progress has been far slower than we initially discussed. Should I take the contractor to small claims court to recover the amount I’ve paid already?

Answer

It can be extremely frustrating to have hired a contractor with a seemingly mutual understanding of the task to be performed, only to see that the contractor isn't fulfilling the promises made. 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.

How should you handle a situation where your contractor clearly isn’t living up to the terms of your bargain? Running to court should not be your first step. Rather, the first step should be a conversation. If you haven't done so already, then politely, but firmly, remind the contractor what was promised. Have 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 through conversation.

As a second step, assuming you do not want to hire an attorney, try putting your concerns in writing. Write a letter to the contractor explaining what was promised (quoting the contract, if a written contract existed) and explaining 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 these avenues still get you nowhere, you might need to sue the contractor to truly get some attention. Small claims court may or may not be the appropriate venue. Generally, small claims courts have limited jurisdiction. This means that the judges are limited in certain ways in terms of what they can do for you. Specifically, small claims courts usually have a monetary limit – for example $5,000. This means that you cannot sue for an amount more than that limit.

Moreover, 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.

Broadly speaking, a person should not file a lawsuit in small claims court unless it's an absolute must. The legal process will almost certainly be slow, and as a practical matter, that means that the work on your home will come to a halt in the meantime.

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 – protracted litigation.

Having said that, a benefit to small claims court is that you generally 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 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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