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Ask the Builder: Don't take your contractor to court; do this instead
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Ask the Builder: Don't take your contractor to court; do this instead

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A courtroom is the last place you want to be with your builder.

How many horror stories have you heard about homeowners who want to sue their contractor? These disputes arise for numerous reasons, but in almost all cases it comes down to defective workmanship. Sometimes it’s non-performance, when the contractor vaporizes and stops showing up at the job. In rare cases, it’s actually fraud in which the contractor takes a deposit and disappears.

Although I’m not an attorney and have never played one on TV, I have been an expert witness in construction lawsuits for more than two decades. My last case had me inspecting the roof of the Brazilian ambassador’s home on the island of Antigua. I’ve been deposed more times than I care to remember, and I’ve sat in the witness chair in several courtrooms.

A few weeks ago I reached out to my newsletter subscribers and asked any who are attorneys for their input on the subject. The ways disputes get settled can vary from state to state, but responses from attorneys around the country confirmed my own experience in the Midwest.

First and foremost, you need to know that absolutely nothing is guaranteed in the legal process. The best analogy I can offer is high-stakes poker. In a poker game, you get dealt cards. Typically, the best hand wins; however, as the song says, you gotta know when to hold 'em and know when to fold.

In the legal world, the facts and the expert witness reports are the game cards. The player with the best facts and reports tends to carry the day.

Only a small portion of disputes even make it to the courtroom. Almost all of them are settled before going up the courthouse steps. It almost always boils down to the quality of the expert witness reports. The party in the case with the weaker report folds, just like in a poker game.

If you want to sit at this table, be prepared to spend tens of thousands of dollars — and, again, understand that there is absolutely no guarantee you’ll prevail. Even if you settle the case in your favor, by that point you may have spent thousands of dollars — and not all states permit you to recover your costs.

The legal process is long, expensive and straining. It’s like being in a taxicab going for a cross-country trip. The meter is running each day or week as the attorneys and experts rack up hours and hours of work on your behalf.

In almost all states, you can represent yourself in a small-claims court. But there are maximum award amounts in these venues, and if your claim is more, you need to do battle in a real courtroom.

Here’s the worst part, in my opinion — and where the gambling analogy breaks down. When you win at poker, you get to rake in the pot. In court, even if you go through the entire process and win the case, there’s no guarantee you will get the money!

In almost all states, you leave the courtroom with a judgment. You now have to start a different process to try to collect the amount of the judgment. Oh, and then don’t forget, the losing party has the right to appeal the decision in almost all states! Now the taxicab meter starts all over again.

Remember, there’s no guarantee you’ll ever win.

Having read this, you may wonder how you can prevent all this hardship and financial loss. Books have been written on this topic. On my AsktheBuilder.com website, I have no fewer than 20 columns devoted to it.

Here are a few things you can do to avoid going to court.

First, make sure all jobs have detailed and comprehensive plans and specifications. You need to communicate clearly to the contractor exactly what you want and the level of finish quality. You can do this with photographs you get from the internet.

Before you hire a contractor, you need to inspect previous work he has done for others. Go to other houses where he’s done similar work you’re going to have done. Talk with the homeowners. This is hard, it takes time, and it can be uncomfortable. If you fail to do this due diligence, you’re basing your decision on hope.

All of the attorneys that answered my query agreed that you should have an attorney review your contract with the builder before you sign it. Payments should only be made for work that is satisfactory. You should collect affidavits from all contractors and suppliers before you hand over your money. These are legal receipts that prevent a contractor from filing a valid lien on your home.

Talk to your attorney before you forward a deposit. Find out how you can get the best protection against holding a pair of twos in this high-stakes poker game. You want a royal flush!

(Subscribe to Tim’s’ free newsletter and listen to his new podcasts. Go to: AsktheBuilder.com.)

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Q: Tim, my neighbor discovered that many of his outdoor deck floor joists are rotting. The rot is along the top where the decking attaches to them. It’s treated lumber rated for outdoor exposure. How can this be possible? I thought treated lumber was rot-proof and would last for a lifetime. What’s going on and are there ways to prevent treated lumber from rotting in the event something’s wrong? —Andy D., Lexington, Ky.

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