Suing Home Contractor for Construction Defects in Small Claims Court in New Jersey

Your home contractor's work was inadequate, and you feel you're owed a small but not insignificant amount of money: Try small claims court.

Not all disputes are large enough to merit hiring an attorney -- for example, if you've hired a contractor to do a small flooring, window, or repair job on your New Jersey home, and he does it badly, or fails to complete it.

To meet the needs of plaintiffs who have smaller claims, New Jersey offers a  dedicated small claims court. This court has special judges and simplified rules, so that attorneys are not required. Average people can bring claims against other individuals or businesses of up to $3,000. For many, if not most, disputes between homeowners and contractors, small claims court is an ideal venue to resolve these conflicts.

Negotiating With Your Contractor Before Filing Suit

Before you march off to court, begin a negotiation with your contractor. Keep in mind that even small claims court, where procedures are relatively simple, is time-consuming. See whether it might be possible to resolve your claims through compromise.

Find your written contract with your contractor, if you have one, and remind him what he promised. Ask in a nonjudgmental fashion about the problem, whatever it might be. Is the project more complex than he thought when he agreed to work with you? Have other issues arisen in the contractor's life that are taking attention away from your project? Does the contractor need more money than initially thought? Perhaps you can compromise, possibly by providing more time to complete the work in exchange for a smaller payment at the end.

Talking doesn’t always work, however. Contractors might not take this seriously, dismissing your concerns as mere complaining. The next step is to write a strong  demand letter. A demand letter is often taken more seriously than an oral complaint, particularly if you explicitly state that you are “reserving all legal rights should a resolution not be worked out.”

Letters like these can later be employed as evidence that you tried 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. And a well-written letter will lay out all the facts of the dispute so far, which becomes a handy document for a judge to review.

New Jersey’s Small Claims Filing Procedure

If negotiation does not work, litigation might be your only option. Keep in mind that merely filing a lawsuit will sometimes jump-start a negotiation with your contractor, who will see that you are serious. Ironically, suing is sometimes the best way to facilitate an out-of-court resolution.

When you file, the statutes of limitations for your claims are important factors to consider.

These statutes limit the amount of time a plaintiff has in which to file a particular claim. The most common legal causes of action against a contractor are breach of contract (“I wanted a seafoam green house, and she painted it pea green!”) and property damage (“He ruined my carpet when he was supposed to be doing floor repairs!”). New Jersey has a six-year limit under  N.J. Stat. § 2A:14-1  and also a six-year limit under  N.J. Stat. § 2A:14-1  for property damage. Be sure to file within six years, or you might find your claims dismissed.

You must sue the defendant contractor either in the New Jersey 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.” New Jersey has many different counties, sometimes called “vicinages”; if you are unsure of the address of the appropriate court, you can  find it  on the State Judiciary website.

The county clerk will charge fees when you file your lawsuit. In New Jersey, the fee is relatively modest: $22, which includes a $15 fee for the lawsuit itself and a $7 for serving the defendant contractor with the lawsuit by mail. (If you sue additional defendants, for example multiple subcontractors, each additional defendant will cost an extra $9, which includes a $2 filing fee and a $7 service fee). These are 2015 figures -- be sure to check for any updates.

After paying this fee, you’ll file a Small Claims Complaint with the clerk. This form can be found, and filled out electronically, on  Page 8 of the informational brochure  from the State Judiciary. You can fill it 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.

You only have a small amount of space in which to describe your case. Don’t waste it on legalese, or Internet research on laws you don’t really understand. Small Claims Court judges will know the finer points of the law; your role is to describe the facts of your case in a succinct, clear manner.

After the Complaint is filed, the clerk will send a copy to the defendant 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. The contractor 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.

Preparing to Appear in New Jersey Trial Court

All trials in New Jersey’s small claims division are in front of a judge, meaning you will not need to present your case to a jury. However, public speaking is still required, and it's important that you arrive at trial 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 before the judge by rehearsing in front of a friend or family member. Remember, judges have large caseloads and see dozens of litigants every single day, so they'll want you to get to the key facts right away, not waste time on minutiae or expressing anger at the contractor. The judges are also free to ask you questions or press you on weak aspects of your case (and/or may do the same to your adversary).

You should also bring evidence to court. In litigation with contractors who have worked on a home, the most important evidence will typically include: 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.

You’ve Won Your New Jersey Small Claims Court Case: Now What?

If you win your case, the judge will sign a piece of paper called a judgment. The amount of the judgment could be 100% of the damages you asked for, or it could be a portion of those damages (for example, if the judge acknowledges one of your contractor’s defenses as having some degree of merit).

Most business owners pay judgments immediately, in part because they fear negative relationships with banks and lenders and a decline in community respect. However, your contractor might not be so willing to pay.

If he fails to pay you within 30 days of the judgment, you’ll need to return to court and fill out additional paperwork that will allow you to “attach” (i.e. collect upon) assets held by the contractor in bank accounts. Note that if you sued the business entity, you are limited to business accounts; if you sued the individual contractor and have a judgment against him, you can also go after his personal accounts.  Each county  in New Jersey handles this process slightly differently. Speak to your clerk’s office and follow their instructions.

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