Although disputes with home contractors can be extraordinarily frustrating, the dollar value is often too small to justify hiring an attorney. Attorneys, who often charge hundreds of dollars an hour, might end up costing you more than you’ve already lost to your unprofessional contractor. If you’re a Massachusetts homeowner, you may be able to utilize the state’s Small Claims Court to recover damages from your contractor up to $7,000.
The mere fact that you can go to court doesn’t necessarily mean that you should. Before you march off to trial, consider negotiation and mediation as alternatives. Negotiation just means that you attempt to discuss the situation with your contractor.
All litigation – even in small claims court, where procedures are relatively easy – is time-consuming and stressful. If you can negotiate an arrangement with your contractor without proceeding to court, you will both likely be better off. Remind the contractor what was promised, and inquire as to the problem – are materials more expensive than originally thought? Is the job more complex? What would the contractor need in order to complete the project as originally intended? Perhaps you can compromise, maybe giving the contractor more time to complete the work in exchange for a smaller payment at the end.
If mere talking isn’t effective, try writing a demand letter. A letter tends to be taken more gravely than an oral complaint, particularly if you note that you are “reserving all legal rights should a resolution not be worked out.” Letters can later be used as evidence that you did your best to avoid going to court, and gave your contractor a reasonable chance to fix the error, or refund your money, rather than burden the court system. (This will carry weight in court -- judges don't favor people who rush to litigation.)
Finally, consider mediation. Massachusetts has long been a pioneer in court-annexed mediation programs and alternative dispute resolution. By filing your lawsuit, the court will encourage you to use no-cost mediators. These are trained individuals, typically attorneys, who will sit down with you and your contractor to attempt to work out a settlement. These settlements can be more creative than the result from a trial, where the judge will generally only award (or not award) money to the plaintiff. Mediators are neutrals, meaning they have no authority over the outcome; they can instead facilitate the conversation and jump-start a stalled negotiation.
If negotiation fails, you may need to proceed to litigation. One of the first factors to consider is the statute of limitations; these statutes limit the amount of time a plaintiff has to file a claim. The most common legal causes of action against a contractor are breach of contract (“She said he would repaint my house green, and she repainted it orange!”) and property damage (“He broke my air conditioning system when he was supposed to be doing electrical repairs!”).
Massachusetts has a six-year limit under Mass. Gen. Laws ch. 260, § 2 for breach of contract and a three-year limit under Mass. Gen. Laws ch. 260, § 4 for property damage. Be mindful to file within these parameters.
You must sue the defendant contractor either in the county court where its offices are located, or where the event that is the basis for the lawsuit occurred – in other words, your home, where the contractor was supposed to do the work. Most plaintiffs prefer to sue in their home county, since this is more convenient and provides a certain degree of “home court advantage.”
The county clerk will charge fees when you file your lawsuit, which vary depending on the value of your claim. The filing fee for claims less than $500 is $40; the fee for claims between $501 and $2,000 is $50; the fee for claims between $2,001 and $5,000 is $100; and the fee for claims between $5,001 to $7,000 is $150. (2015 figures.) These fees occasionally change, so be sure to check the state’s fee website prior to filing.
After paying your fee, you’ll file a Statement of Small Claim and Notice of Trial with the clerk. You can fill out that form in person or download it and bring the completed version to court. Keep in mind, a typed version will look more professional. You’ll need to provide names, addresses, and phone numbers for both yourself and the defendant contractor (or his business entity name). You’ll then need to describe your claim. Finally, you’ll indicate the amount of money you believe you are owed. Don’t exaggerate the amount of damage claimed, since judges will require you to prove the full extent of those damages.
An important tip for writing your Statement: avoid references to statutes and legalese. Too often, plaintiffs in small claims court will mistakenly think that legal research on the Internet will convince a judge of their position. Rather, judges will be more convinced by the facts of your case. It is their role to know the details of the law.
Once this paperwork is filed, the clerk will send a copy to the contractor along with a notice to appear in court on a specified date. That will be the date when you each orally present your case to a judge. He will also have an opportunity to send an Answer to the court before the trial, which is similar to the Statement you wrote, except from the contractor's perspective. He will likely deny, or recharacterize, the story that you’ve written.
You should come to court knowing your case backwards and forwards – the date of every email, the amount of every invoice, and the day-to-day events that resulted in the breakdown of your relationship with your contractor.
Practice what you will say in your one to two minutes when speaking to the judge by rehearsing in front of a friend or family member. Keep it simple, like a story. Remember, judges have large caseloads and see dozens of litigants every single day. Avoid irrelevant facts or speculation about things like the contractor's motives.
You should also bring physical evidence to court. In home-improvement litigation with a contractor, the most important evidence normally includes: 1) Any written contracts between you and the contractor outlining the work he promised to perform, the timeline for performance, and the payment agreed upon; 2) Any proof of payments from you to the contractor, showing how much money you’ve already paid; 3) Any emails, letters, or other correspondence you’ve sent to the contractor outlining your dispute; 4) Photographs of your home before and after the construction work, especially photos that show shoddy or inadequate workmanship.
In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.
“Winning” for you could mean that the judge awards you 100% of the damages you asked for, or it could mean that he or she awards you a portion of those damages. Either way, you’ll receive a judgment, which is essentially an order that the defendant contractor pay what the judge determined he owes you.
Typically, business owners pay judgments immediately, in part because they fear negative relationships with banks and lenders, and bad press in the community. However, your contractor might not be so forthcoming.
If he fails to pay you, you’ll need to return to court and fill out more paperwork, called a Civil Writ of Attachment. This will allow you to “attach” (i.e. collect upon) assets held by the contractor in bank accounts, to the extent that he has any. Note that you will need to hire a private collection agency for this process. You will need to make a financial decision about whether the money is worth pursuing, if your judgment is relatively low.