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socrateaser
socrateaser, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 34105
Experience:  Retired (mostly)
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I have tenants renting a house that I own. The house is 6 years

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I have tenants renting a house that I own. The house is 6 years old. There are two air conditioning units located outside of the house - one for upstairs and one for downstairs. The upstairs unit was not performing properly - and the warranty expired after 5 years. I hired a company to evaluate this unit to determine why it was not performing properly and repair it if possible. I paid $785 for this evaluation and repair, but the unit failed that night.

At my request, the business that evaluated and tried to repair this unit provided me two formal quotes - one for a new unit and one for a used unit. During all this time I was communicating with the co-owner of the business. I formally agreed to purchase the used unit. We both agreed that they would remove the existing broken unit and install their used unit for the sum of $325. All the details of what we agreed to - the contract that was formed - was done and documented via email.

They failed to install it on the day/time that they said they were going to - as I was there to call their office and provide them my credit card number to pay for the unit once it was installed. This is the same process we went through when they concluded the evaluation/repair - payment upon completion of service.

I called the business and asked the co-owner why the unit wasn't installed as we agreed. She said she would look into it and call me back. She called and told me that the technician was there at 8:30 to install the unit, but that he rang the doorbell and nobody answered. That wasn't true as both the tenant and myself were there - as I had to pay for the unit upon installation. I called the co-owner of the business back and my call went into voicemail - and informed her of this. To date, I have not heard back from this business.

I sent them a breach of contract notice via certified mail and have still not heard from them. I am now prepared to file suit in civil court for Breach of Contract.

My questions - what type of compensation can I sue for:
1. This company materially breached our contract.
2. I have spent hours looking for another used unit and cannot find one anywhere. Can I purchase a new unit and hold this company liable for the difference in cost?
3. My tenants have had to go without proper air conditioning for over two weeks now. This has had a direct impact on their enjoyment of life and this Breach has had a direct impact on my reputation.

Thank you............
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  socrateaser replied 1 year ago.
My questions - what type of compensation can I sue for.

A: Hello. Contract damages must be foreseeable, unavoidable, causal and certain. They may be a direct result, or a natural consequence of the breach. Contract damages are never punitive. In my opinion, your possible damages here are:

1. The difference in cost between the goods promised and the buyer's substitute goods. If the goods procured by the buyer in an effort to cure does not exceed the cost of the goods promised by the seller then there are no damages on this theory.

2. The same analysis would be made for the cost of services. So, you may or may not have damages here. Similarly, if goods and services are combined into a single price, then they are all considered services -- and the analysis remains the same.

3. If you can show that you lost revenue from some other opportunity that you had to forgo because of the meeting for the installation, then you could have consequential/special damages for this (e.g., lost wages, lost prospective tenant for a different property, etc.). But, you can't generally recover for your time, alone, because that amounts to the equivalent of "attorney's fees." And only an attorney can lawfully claim attorney's fees.

4. The tenant can conceivably claim diminution in value of the rental unit against you, assuming that the time to repair was unreasonable. From your facts, it seems that you're a pretty diligent landlord, so I suspect that recovery by the tenant is probably not available -- it would be a judgment call for a court. But, if the tenant were to recover against you, then some of that recovery could be offset against the contractor, because to the extent that the contractor has unreasonably extended the repair time by failing to perform, you would be entitled to the offset.

But, to get that offset, the tenant would have to sue you, and you would have to sue the contractor. So, unless that's what happens, there would be no recovery here.

That about covers things. Please let me know if I can be of further assistance.
Customer: replied 1 year ago.
Hi - thank you for your response.

In reference to your response, I firmly believe that they possessed the used unit after the scheduled installation date - as I was told they did. For some reason, unknown to me because all our communication was professional and pleasant, they refused to reschedule its installation.

In reference to your point #1, if I understand it correctly, if I can't find another unit that meets the criteria that they quoted me, that in order to cure this breach I would have to buy a new unit. That being said, could I sue them for the difference in cost? I have looked everywhere for another used unit and was consistently told that decent used units are rare as when one is replaced it's because it's on its last leg.

Expert:  socrateaser replied 1 year ago.
In reference to your point #1, if I understand it correctly, if I can't find another unit that meets the criteria that they quoted me, that in order to cure this breach I would have to buy a new unit. That being said, could I sue them for the difference in cost? I have looked everywhere for another used unit and was consistently told that decent used units are rare as when one is replaced it's because it's on its last leg.

A: Yes, you could still sue and your damages would be the difference in cost, less depreciation for the used good. Proving the depreciation would be difficult, but it wouldn't necessarily be your obligation. You could argue that since you couldn't find a used unit, that the difference should be the entire difference without depreciation. Then, it would be up to the defendant to prove depreciation based upon finding a substitute unit, or otherwise demonstrating the deprecation via expert testimony (insurance appraisal, etc.).

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34105
Experience: Retired (mostly)
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