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What type of lien should I file?


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By Ed on 9/19/2010


I recently had a concrete patio built at my home and the contractor made a mess and every time he tried to correct it, the mess got bigger and bigger. Needless to say I basically fired him because of his inability to finish and complete the job. I asked him for my money back and haven't heard from him since. I'm thinking of taking him to small claims court and I don't think he has much money. I wanted to know if I could file some kind of lien (besides his crappy car) to make him refund my money. Something like... lien against his bank account, retirement check, etc.

Thanks in advance.

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By Arne in Houston, TX on 9/21/2010


Ed,


In your situation, you are going to have to file suit against the contractor who "built" your patio. If you are successful in court, a judgment will be issued against the contractor and he will be ordered by the court to pay you a sum of money. If he refuses to pay, it becomes a matter of the court and they will decide what legal remedies under the law exist in your state. 

You might want your money back in full, but you are not going to get that unless you can prove fraud or deceptive trade. More than likely, you would only be awarded the cost of completing the work detailed in your original contract using another contractor.  

I can tell you right now that what will determine the strength of your case is the quality and detail of the contract you have with this person. If all you have is a verbal agreement, or he gave you a simple quote and you shook hands for him to do the work, you will find you have little to stand on. You would be better off if he took your money and never showed up, at least then you have a case of fraud. Unfortunately, he did show up and only did a lousy job. 

In any case, you need to talk to an attorney to evaluate what your options are and whether you have a case worth pursuing. 

Arne

To anyone, I cannot stress enough the importance of proper contracts for work that you want done. The contract should include drawings and detailed specifications and clearly define the expected outcome. Above all, the agreement must be signed by both parties and both parties must have copies. In the event of a dispute or claim, the contract will be the first thing a court asks for.

In the case of a concrete patio, this should include what foundation is required, the specifications of the concrete and reinforcement, what slope should be done to provide for drainage, clean up during and after construction, time frame for the project to be completed, what inspections are required, and finally the terms of payment.   

As a word of advice, on a quick project like a patio, a contractor should do the work and be paid upon completion. If a contractor wants to be paid up front, buyer beware. If you feel you have to compromise because the contractor you really want does not have the resources to pay for the materials, I would rather be responsible for buying the reinforcing wire/rebar and concrete myself and pay for labor at job completion. If a contractor insists on being paid up front, find another contractor.    

Remember, if you don't pay for work performed, the contractor can file with the court and secure a mechanic's lien on the property they did the work on.

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