Suing Home Contractor for Construction Defects in Small Claims Court in Virginia

Did your Virginia home contractor mess up the job? For a small dispute, Virginia's small claims, "district" court might offer a good avenue of relief.

Virginia’s general district court decides cases where the amount in controversy is $4,500 or less. This court does not conduct jury trials; rather, your case would be heard exclusively by a judge. Sometimes referred to as small claims court, district court can be an ideal mechanism for resolving disputes between homeowners and contractors with regard to relatively minor projects – for example, painting, tiling, or landscaping projects where the amount in controversy is probably not enough to merit hiring an attorney.

Negotiate First, Sue Second

Court is not the optimal first step when you have a small dispute with your contractor. If you can avoid the time and hassle of small claims court, both you and your contractor will be better off. Make your best effort to negotiate outside of court. Have a conversation about the issue that's bothering you. Was there a misunderstanding in your contact? Was the project more difficult than the contractor anticipated? Give the contractor a reasonable opportunity to solve it before moving forward.

If this soft approach fails, the next logical step is to send the contractor a demand letter. Nolo has a useful guide onwriting demand letters, which tend to be taken more seriously than mere oral complaints, especially if you note that you are “reserving all legal rights should a resolution not be worked out.” This can serve as a useful wakeup call to the contractor.

Moreover, sending a demand letter is wise if you sue, because it can become evidence to the judge that you're not litigation-happy -- in fact, that you did your best to avoid going to court. You gave your contractor a reasonable opportunity to fix the error or refund your money rather than immediately burdening the judicial system.

Virginia Statutes of Limitations for Contractor Disputes

Beyond the $4,500 monetary limit in small claims court, Virginia’s statutes of limitations create time limits on when you can file your case. The most common legal causes of action against a contractor are for breach of contract (“I paid my contractor $1,000 up front, and he messed up half the job and then didn't finish!”) and property damage (“The contractor broke my window while he was repainting my house!”).

Virginia has a five-year limit under  Va. Code § 8.01-246(2)  for breach of contract and a six-year limit under  Va. Code § 8.01-243(B)  for property damage. Don’t make the mistake of waiting to file your lawsuit until you need extra money; you should file as soon as it becomes clear that negotiation will not succeed.

Filing the Lawsuit in Virginia Small Claims Court

The first step to initiating your lawsuit is figuring out where, exactly, to file your case. Virginia mandates that you sue the defendant either in the county court where the defendant is located (i.e. where its offices are), or where the event that is the basis for the lawsuit occurred (i.e. your home). Lawyers often prefer the “home court” advantage of suing in your home county, since judges might be marginally more favorable to residents. If you’re unsure of your county, Virginia’s court system offers a  map on its website  with each county clerk and related contact information.

Like all states, Virginia charges fees for filing a lawsuit. These fees vary between counties. Costs will generally be between $60 and $90. The court system website offers a  calculation tool  to determine your fees; simply select your county and scroll down to “Warrant in Debt – Small Claims,” and then fill in some specifics about your case.

Next, you’ll file your lawsuit. Most states call this a “complaint,” but Virginia uses the older nomenclature of a “Warrant in Debt.” (This essentially is a claim for money damages against the contractor, who is your debtor). You’ll see that the  Warrant in Debt form  can be filled out online, or it can be printed and brought physically to court.

The form asks information about you and the defendant contractor – names, addresses, and phone numbers. If your contractor is a business (rather than just an individual), you can search for the business’s official information through the  State Corporation Commission website.

After these documents are 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.

Preparing Your Oral Argument

Virginia’s court system  describes  small claims trials as “informal,” in the sense that each party is given an opportunity to describe his or her perspective in a narrative fashion. A good way to rehearse is by explaining your claim to a friend or family member, trying to get your statement down to roughly one or two minutes. Keep it simple and direct. Small claims court judges have large caseloads and see dozens of litigants every day. Avoid irrelevant facts. Make the judge’s job easier.

Beyond having a good oral presentation, you are entitled to bring evidence to court on your trial date. In the context of home improvement contractor litigation, the most important evidence will likely 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 given him; 3) Any correspondence, such as emails or letters, that you’ve sent to the contractor outlining the facts of your dispute; 4) Photographs of your home before and after the construction work, especially photos that show shoddy workmanship.

In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.

Enforcing a Virginia Small Claims Court Judgment After You Win

What happens if you win your case? You might receive a judgment for  all  of the money you asked for, or you might be awarded some percentage of that money. (This could occur if, for example, the judge decided that your contractor had valid defenses or you were unable to prove the full extent of your claimed damages).

Either way, you’ll want to collect on the judgment. If the defendant – who is now called the “judgment debtor” in Virginia – is at all honorable, he will pay you fairly quickly.

If he does not, you’ll need to return to court and fill out further paperwork. While the procedure varies slightly from one county to the next, you’ll probably need to file a  Garnishment Summons. This will notify the contractor of his default one final time, but will give you a legal avenue with which to attach assets in bank accounts. More often than not, though, the contractor will not want to risk his credit with banking institutions and the community, and will pay the debt to you directly.

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