Advice on dealing with a contractor?

[matt.mackinnon]

I hired a contractor to replace the kitchen for my MIL who just moved into a condo. I had checked their background, and know their work as they replaced the counter tops at my parents house.

Well we ran into a snag and would like to hear from some of the members here who do contract work. The dispute stems from the following.

When we ordered the kitchen cabinets and granite counter top, we discussed what we wanted, and I provided a set of drawing ideas as to what I wanted. There were several things like putting in a granite window sill and wall covering just behind the sink. He sent me an email that these would be included at no extra cost. ( as I had questioned why they were not listed in the contract as itemized items ) We gave a 50% deposit for the work on signing the quote.

About 3 weeks into waiting for the cabinets, we found out that they had not been ordered as he was waiting for a signoff for the cabinet design as he had gotten confused about what I meant when asking for " a single pain of frosted glass shaker style, like the rest of the cabinets'. So needless to say he hadn't bothered to come around, so they didn't get ordered.

Now some 9 weeks later, we have the cabinet boxes installed without doors, no counter tops, and he has decided that parts of the install that were included are now extra and wants to be paid by certified cheque, or else he is going to put a lien against the condo.

As a consumer.. what do I do?

Matt.

[willr]

Originally Posted by matt.mackinnon

I hired a contractor to replace the kitchen for my MIL who just moved into a condo. I had checked their background, and know their work as they replaced the counter tops at my parents house.

Well we ran into a snag and would like to hear from some of the members here who do contract work. The dispute stems from the following.

When we ordered the kitchen cabinets and granite counter top, we discussed what we wanted, and I provided a set of drawing ideas as to what I wanted. There were several things like putting in a granite window sill and wall covering just behind the sink. He sent me an email that these would be included at no extra cost. ( as I had questioned why they were not listed in the contract as itemized items ) We gave a 50% deposit for the work on signing the quote.

About 3 weeks into waiting for the cabinets, we found out that they had not been ordered as he was waiting for a signoff for the cabinet design as he had gotten confused about what I meant when asking for " a single pain of frosted glass shaker style, like the rest of the cabinets'. So needless to say he hadn't bothered to come around, so they didn't get ordered.

Now some 9 weeks later, we have the cabinet boxes installed without doors, no counter tops, and he has decided that parts of the install that were included are now extra and wants to be paid by certified cheque, or else he is going to put a lien against the condo.

As a consumer.. what do I do?

Matt.

Simple.

You have the email. It will be accepted as reasonable proof that the matter was covered.

Go have a visit -- stay clear of rhetoric, get an itemized list of the differences in opinion and fact. Don't argue -- just gather the facts!

Find out how much money is involved.

Decide how much money this is worth to you -- in any respect...

Decide if you want him to finish, if not -- will the money paid cover what's done? If the money will cover work-to-date -- get someone else. If not decide how big a fight you want.

Till you go through the evaluation, and look at the money on the table and the time and trouble any further discussion is pointless.


Dealing with a much uglier legal matter right now -- and I can't emphasize enough -- do the evaluation -- figure out what's on the table. Try to figure out how it got where it is see if it can be repaired for less than any legal action, lawyers, threatening letters..... if it can be repaired effectively -- do so!

Be realistic about evaluating your own performance -- or the lack thereof.

Think about "What are the odds...???"

Good luck

[master finishing]

If the boxes are in and the doors are not around he is likely holding out until you pay him more money. Once you have the doors that should cover off the 50% and you decide if you want him to finish the kitchen. As mentioned above if this argument gets ugly legally or otherwise it will be monthes of headache and lots of bucks$ to fix.

Good luck. If you need a good kitchen company feel free to contact me and I can get you in touch with some excellent professionals.

[Max In Sudbury]

Matt,

The problem you are may run into is that the installation has started. You can no longer pursue a criminal issue (ie. fraud) - only a civil issue (quality of work, overbilling, etc). That said, if you pursued criminal charges, he may go to jail (not likely), but there's no guarantee that you'd get your money back or the job completed.

Under the Construction Lien Act (Ontario), you are only allowed a 10% holdback, until the project is complete (substantial completion). At that point, you have a certain number of days (60 or 90, but it could be less), to complete payment, and he has the same period to apply a lien. He's then required to enforce the lien - which only means something if/when you sell.

On the other hand, if he doesn't show up and finish the work - within one year from a certain date (can't remember if its start or end - but I think end), and he doesn't complete the work, I believe the project is considered abondoned, and he can no longer collect payment.

Honestly, I have little faith in mankind to make the right decision. I'd recommend that you document everything. Every meeting, deficiency, promise, scratch, hinge that doesn't close properly, etc. Take pictures, record every time one of his workers shows up and leaves. This will all help if you have to go to court.

Send him letters. If you don't get responses, then send them by registered mail. Again to document that he received them.

Here's teh construction lien act....

http://www.e-laws.gov.on.ca/html/sta...es_90c30_e.htm

Some light reading for a Friday evening!

Max

[willr]

Originally Posted by Max In Sudbury

Matt,

The problem you are may run into is that the installation has started. You can no longer pursue a criminal issue (ie. fraud) - only a civil issue (quality of work, overbilling, etc). That said, if you pursued criminal charges, he may go to jail (not likely), but there's no guarantee that you'd get your money back or the job completed.

Under the Construction Lien Act (Ontario), you are only allowed a 10% holdback, until the project is complete (substantial completion). At that point, you have a certain number of days (60 or 90, but it could be less), to complete payment, and he has the same period to apply a lien. He's then required to enforce the lien - which only means something if/when you sell.

On the other hand, if he doesn't show up and finish the work - within one year from a certain date (can't remember if its start or end - but I think end), and he doesn't complete the work, I believe the project is considered abondoned, and he can no longer collect payment.

Honestly, I have little faith in mankind to make the right decision. I'd recommend that you document everything. Every meeting, deficiency, promise, scratch, hinge that doesn't close properly, etc. Take pictures, record every time one of his workers shows up and leaves. This will all help if you have to go to court.

Send him letters. If you don't get responses, then send them by registered mail. Again to document that he received them.

Here's teh construction lien act....

http://www.e-laws.gov.on.ca/html/sta...es_90c30_e.htm

Some light reading for a Friday evening!

Max

Max/Matt:

I read the lien act...

I think the issue is that you have to deal with "substantial performance". If matt has expressed the situation accurately then I would say that only installing the boxes is not "substantial performance" as the Kitchen counter-top cannot be used unless someone installs a work-around -- so therefore the work cannot "be used as intended".


Contracts, substantial performance and completion
When contract substantially performed
2. (1) For the purposes of this Act, a contract is substantially performed,
(a) when the improvement to be made under that contract or a substantial part thereof is ready for use or is being used for the purposes intended; and
(b) when the improvement to be made under that contract is capable of completion or, where there is a known defect, correction, at a cost of not more than,
(i) 3 per cent of the first $500,000 of the contract price,
(ii) 2 per cent of the next $500,000 of the contract price, and
(iii) 1 per cent of the balance of the contract price. R.S.O. 1990, c. C.30, s. 2 (1).


Idem
(2) For the purposes of this Act, where the improvement or a substantial part thereof is ready for use or is being used for the purposes intended and the remainder of the improvement cannot be completed expeditiously for reasons beyond the control of the contractor or, where the owner and the contractor agree not to complete the improvement expeditiously, the price of the services or materials remaining to be supplied and required to complete the improvement shall be deducted from the contract price in determining substantial performance. R.S.O. 1990, c. C.30, s. 2 (2).


When contract deemed completed
(3) For the purposes of this Act, a contract shall be deemed to be completed and services or materials shall be deemed to be last supplied to the improvement when the price of completion, correction of a known defect or last supply is not more than the lesser of,
(a) 1 per cent of the contract price; and
(b) $1,000. R.S.O. 1990, c. C.30, s. 2 (3).


When materials supplied
(2) For the purposes of this Act, materials are supplied to an improvement when they are,
(a) placed on the land on which the improvement is being made;
(b) placed upon land designated by the owner or an agent of the owner that is in the immediate vicinity of the premises, but placing materials on the land so designated does not, of itself, make that land subject to a lien; or
(c) in any event, incorporated into or used in making or facilitating directly the making of the improvement. R.S.O. 1990, c. C.30, s. 1 (2).




So I do not believe that a lien would be legal as (substantially) all the material has not been supplied or placed and I presume that you have not interfered in such work/placement -- if so, that threat is a non-starter. Or as we say in the bush here -- that dog don't hunt.

The reason I think this way is that it appears that less than 50% of the value has been received, and you put 50% down -- if anything he may owe you if the deal is canceled.

There is a written contract -- which I had not noted -- but perhaps it has lack of clarity on a couple of critical points... Like you must pay before the next delivery -- or whatever. Regardless -- if he cannot even meet the written terms then he is the one in default -- not you -- and this dispute falls under contract law as a lien should be rejected or could easily be overturned with him owing the costs for the related actions. And contract law should be in your favour -- except possibly for what you aren't telling us or don't know.

I think the contractor has a problem and is open to suit. I agree with Mark's assessment that it "looks" like a "hold-up". The issue is "part performance" -- and those issues can be ugly...


I would also bet that Matt does not have all the facts -- there could well be a reason for the dispute. ..


Anyway -- I got interrupted twice on this -- dealing with the other nasty problem...

The reference max provided was interesting as I have virtually no experience with liens and normally deal with IP and other weird stuff. However with what you have been provided by everyone if you take some time to think it through, you could find a visit to a lawyer most instructive -- and probably calming. But would I bet the family farm...??? hmmm

Anyway -- it is puzzling -- unless Mark is right... do let us know.


Anyway -- too many unknowns to make an effective call ... As I said originbally -- get the facts man, just the facts...

[Mark Nowicki]

What does the contract say about payment schedule ( especially change orders) time of completion, materials (quality, style, etc.)?

I would make a hard copy of the e-mail.

Your story is confusing. The work is being done at your MIL house but you signed the contract?

Why do you think the kitchen contractor is willing to end his relationship with you ( a repeat, referring customer) by threatening a lien?

Mark

[Mike in Waubaushene]

I have one rule when it comes to contractors. NO upfront money. If they insist on it, send them packing. There are plenty others to choose from. Between the 2 of you determine a weekly payout for work. The first week probably is greater because of his upfront material costs.
They all have accounts setup at their suppliers, so it is not like they need money to get started. Be very leary of them if they do.

[willr]

Originally Posted by Mike in Waubaushene

I have one rule when it comes to contractors. NO upfront money. If they insist on it, send them packing. There are plenty others to choose from. Between the 2 of you determine a weekly payout for work. The first week probably is greater because of his upfront material costs.
They all have accounts setup at their suppliers, so it is not like they need money to get started. Be very leary of them if they do.

Mike:

I have done lots of contracting.

Many times I did not have an account where supplies had to be purchased.

Most contractors are not willing to take on work without a sufficient deposit to cover material and initial labor.

That's because there are too many disputes, and it's hard to pay your workers with promises...


Hope that makes sense to you.

[callee]

Originally Posted by willr

Mike:

I have done lots of contracting.

Many times I did not have an account where supplies had to be purchased.

Most contractors are not willing to take on work without a sufficient deposit to cover material and initial labor.

That's because there are too many disputes, and it's hard to pay your workers with promises...


Hope that makes sense to you.

My thoughts too. Accounts at supply stores do not cover payroll! And for that matter, even if the contractor had an account, why should we think he would be willing to carry the liability for someone else's material? Then there's a dispute, and he's left holding the bag!

I know many contractors, some reputable, some less so. All of them have had customers run on them at least once; customers who have the work done, but then just refuse to pay! And depending on the amount owed, its often just not worth the legal fees to take them to court.

I know one contractor, a man of incredible integrity, a former pastor at that! He's been in the business for 35 years, and doesn't advertise at all: it's all built on word-of-mouth and repeat business. In 35 years he had never had a single customer dispute, but then suddenly in just one year he had 3: 3 customers who, for one reason or another, decided he was trying to rip them off and therefore refused to pay! When I heard the details, I could see both sides. I could see how the truth was that the customers had misunderstood and had unreasonable expectations, and that he wasn't trying to rip them off at all. But from the customers point of view, I could also see how they could end up thinking what they did. They were still wrong, but I could see how they got there. So the whole thing was unfortunate, but the bigger problem is that each of these 3 individually was too small to be worth going to court over, but all three together were enough to almost bankrupt him! He had accounts at his suppliers, but no money to pay them! And so here's this poor guy, with suppliers he has dealt with for years, whom he needs to keep dealing with in order to stay in business, and they been good suppliers and they've already given him the goods, but now he has to tell them that he has no money to pay them! The whole scenario was just ugly. And the irony is that the customers weren't getting ripped off, but in order to avoid being ripped off, they ripped off someone else! They victimized in order to avoid being victimized.

Originally Posted by Mark Nowicki

Why do you think the kitchen contractor is willing to end his relationship with you ( a repeat, referring customer) by threatening a lien?

Mark

That was my thought too.

Matt, I'm not trying to blame or accuse you here, absolutely not, but I'm just wondering what the contractor would say were he here? Could it be that this is all a misunderstanding, similar to my friend I just mentioned? Could it be that while you're sitting here honestly thinking he's trying to rip you off, he's sitting over there honestly thinking the same thing?

Contracts are sometimes not as clear as they should be. Granite window sills and wall coverings behind sinks do not sound like things that a contractor would ever include for free. Every contractor I know - especially the honest ones - stress to me that you never do anything for free. If someone told me that their contractor had said he would do those things for free, my first instinct would be that they had misunderstood their contractor. Is that a possibility here?

It happens. The contractor I work for now, he's an honest guy (I wouldn't work for him otherwise) but he had a similar situation just last week. I'm on one jobsite, but he has another one going, a major build of a log home. It's been going on for almost a year now, and they are just finishing up. He's got to know the owner very well, they've become pretty decent friends even, I would say. The owner plans on doing much of the finishing work inside himself, so there's lots we are leaving undone. Just last week, however, there was a contract dispute. There is a second story loft in this house. On the other side of the second story, there is also a second story balcony outside. The contract included a railing on the second story balcony, but did not include a railing on the second story loft. My boss assumed this one of the things the owner was going to do himself. The owner, however, had been misunderstanding the clause about the second story balcony railing, and had been assuming that the loft railing was included. For almost a year now he'd operated on that misunderstanding, and just last week they figured that out when he said "when are you going to do the loft balcony?" and my boss said "I'm not!" There was a bit of an argument, but in the end they resolved it. I read the contract, and I could see how the owner had understood the clause the way he did. It wasn't written as clearly as it should have been, and though I could easily see the correct way to understand it, I could also see how someone else could easily mis-read it. It's unfortunate that he misunderstood it, because he's been budgeting his money accordingly and now doesn't have a bunch of extra money to pay for a loft. He therefore asked us if we could throw it in for free. But, as much as my boss likes him, he just couldn't do that. I mean, it's not like my boss is sitting on a pile of money, or works in profit margins in his quotes that are sooo over-sized that they can absorb a free railing! Putting it that railing would cost actual money, both in the materials and the labour costs to make and install it. Where's that money going to come from? My boss doesn't have it to spare, and even if he did, why should he pay for someone else's railing? So in the end the customer had to go find the extra money.

So Matt, is it possible that you've misunderstood him? Maybe what the contractor meant was that those things, like the granite sill, were extras outside of the contract, meaning he would bill for them seperately. Maybe?

[Max In Sudbury]

Originally Posted by Mike in Waubaushene

I have one rule when it comes to contractors. NO upfront money. If they insist on it, send them packing. There are plenty others to choose from. Between the 2 of you determine a weekly payout for work. The first week probably is greater because of his upfront material costs.
They all have accounts setup at their suppliers, so it is not like they need money to get started. Be very leary of them if they do.

There's not a kitchen contractor in the world that would start building your kitchen without cash up front! I would gladly walk from any job that would not provide a deposit. The deposit is the security for the contractor to know that the customer will pay - and on time. Its one of the few things that we can do. To go through the hassle of placing a lien for the remaining 10% holdback is never worth your time - unless you are working on new construction where the bank or general owns the building until work is completed.

That said I also sign contracts that have payment schedules based on levels of completion.

Max

[hwgill]

The 50% deposit makes sense as far as it goes, but if only the boxes have been installed, he isn't even close to being able to charge for anything more yet. The cabinets must be completely finished first, then the contractor can start looking for the money for the counter-tops.

I agree that the sills and back-splash could not have been meant to be free, the contractor can't supply and install for free those parts unless he has already included the cost of that stone in his original quote.

You really need to look over that contract again, and read it carefully, especially the payment schedule...that will tell you if he is legally allowed to put a lien on the house for the work completed so far.

Also, any letters you send must be by registered mail to ensure you have proof that they were received. Hard copies of all communications must also be kept, including copies of all letters you send as well as what he sends to you. Make sure everything is put into writing, and at this point, I would suggest refusing any verbal communication unless you are able to record those conversations, because if you do end up needing to go through legal proceedings, it becomes a he said/he said situation, and that is never a good thing.

[matt.mackinnon]

Originally Posted by callee

So Matt, is it possible that you've misunderstood him? Maybe what the contractor meant was that those things, like the granite sill, were extras outside of the contract, meaning he would bill for them seperately. Maybe?

This was part of an email that I got from the contractor when I questioned why the quote only showed counter top. (it also only says kitchen cabinets, without any detail as to how many or of what style)

We can do the window ledge from off cuts at no charge, and can assist with
the bathroom counter using off-cuts as part of our promotion.

My suggestion is that install the bathroom counter, and remove the kitchen cabinets first, while we wait for the kitchen cabinets to be made.

Let us know ASAP.

Regards,

Well, it turned out that he could not do the bathroom counter using offcuts and that got added to the bill for an extra $1700. I even agreed with him to pay for that as we left the original cabinets in the bathroom, so the counter tops were quite large. Again, the problem with this is that he already had the $9000+ from the deposit. All I wanted was to get the job done, and it to look good.

Your story is confusing. The work is being done at your MIL house but you signed the contract?

The problem that I am in is that my MIL is from the Ukraine and english is not a very strong language for her. She also can't seem to make any decisions as she's well into her 80ies. It took her over 5 weeks to finally decide that she wanted hard wood floors in her bedroom and so I was left with just over 8 days to find a contractor to install them before she moved in.

Hence, I signed contracts on her behalf to get the work done. She pays the bills.


Thanks for all the insite that has been given. I am still hoping that this contractor will meet with me to go over what work will be done, buy whom, and for what cost so there is no miss-understanding. But he seems reluctant to want to do this, rather shove more BS my way threatening me. The only think that I think is that he has not got the cabinet doors yet, so he can't finish the job.. This may be a stall tactic as well as a method to try and get more money out of a job that he didn't budget enough money to complete.

I know I don't have all the answers..

Matt.

[Lost in the Woods]

I'm not in the reno-construction biz, but I do "contract" type work for individuals as a seasoned professional in my field. I enter into agreements that can repeat themselves many times over the months/years with each individual. Once in a blue moon, I get somebody that quite frankly, I would like to cease dealing with. It is common for others as well in my field in such a situation, to overcharge the individual in hopes that they will go elsewhere the next time. This has only happened to me a couple of times in twenty years, and even those few times, I hate doing it, but it is actually better than telling somebody you don't want to deal with them any longer. Just a thought as to what may be actually going on in your situation as well.

[dave_k]

Originally Posted by matt.mackinnon

As a consumer.. what do I do?

Matt.

I know I'm a little late but the best thing you can do is cool down and talk to him.

Make an itemized list of what you think is deficient. Be prepared to pay for the work that's done properly to date

Don't worry about the lein. It won't affect you unless you want to sell the house in the next couple of months and even then all you have to do is satisfy the lein.

I am assuming you don't have a proper contract. you should have a contract that includes milestones or dates for payment. The contractor should also have been having you sign off on material selections etc. and he should be meeting with you or in this day and age at least emailing you and bringing you up to date on your project status, expected delivery dates etc. There's a lot more to it than this but this is a forum so I'm painting in broad strokes. This guy didn't sound very organized.

I've been on the other side of disputes like yours. The most important thing it to keep talking and don't get emotional, for you it's your home for the contractor it's business. Whatever you do stay out of courts. That's only going to make the lawyers rich. before taking the legal route try calling the homebuilders association and see if they can recommend someone to act as a mediator. In the mean time keep the emotions in check and start a dialouge.

[EdmontonEskimo]

I am in the kitchen cabinet business and I agree there is no way any cabinet company does work without 50 percent down and most require another 40 percent before delivery. Thats just how it works. No one can expect anyone to incur those kinds of costs without deposits.