BackgroundIn August 2011 we selected a local contractor to install a driveway and sidewalk at our home in Central Texas.After the job was completed we were not happy with the way the control joints were installed and the poor craftsmanship on the sidewalk and refused to make payment for the work until the control joints had been rectified and the sidewalk torn out and re-poured. I did tell their representative that if he would tell me this was their best work I would write a check for the total amount.Since then, the sidewalk and the driveway have started experiencing major cracking that I believe is greater than normal surface cracking and cracking that would have been less severe if the control joints had been installed properly.The contractor had agreed to replace the sidewalk because of cracking and the poor craftsmanship and insufficient design of the expansion joints.Now the contractor wants us to make a payment of $6650 of the original balance of $7870 before they will proceed. I have held the position that we will pay them in full as soon as the control joints in the driveway are re-cut to look more aesthetic and after the sidewalk is re-poured.We do not have a signed contract with the contractor but all of the documentation has been via emails. Also most of the negotiations over the past 6 months have been through email.Last week they responded to an email from me in which I stated that I would not make payment until they had corrected the deficiencies. They in turn responded with an e-mail threatening to withdraw their offer to re-pour the sidewalk and stated that they were going to seek a judgment against us. They now claim the sidewalk does not need to be re-constructed and they were only doing it to appease us so they could get their payment. I then called the contractor on the phone and told him we should be talking face to face and not through email. They are demanding $6650 before starting. I offered to pay $5650 when they showed up to demolish the sidewalk and start re-cutting the expansion joints on the driveway but they insisted we pay $6650. (They came up with $6650 by subtracting an arbitrary number of $1250 for the sidewalk plus an extra $200 that I had agreed to pay to add more steel and concrete to the sidewalk when it was re-poured).At the end of our phone conversation I told the contractor I needed time to consider what response I would make and I also wanted them to come back with a dollar amount lower than the $6650 that they would accept before proceeding with the work.NOTE:: Before we started construction last year I asked the contractor if we should wait until after the drought we were having and he stated it wouldn't matter because the ground is always moving. Now he states part of the problem was the drought!!. Also he now claims that what he meant when he stated we didn’t need to wait until after the drought was that they could construct the driveway regardless of the weather and ground conditions and was not claiming the driveway would not be affected by ground movement due to the drought.Also the contractor now claims they are not concrete experts and therefore not responsible if the design was not sufficient enough to withstand the forces put on it because of our drought last year.So my question is. What kind of judgment can they get?Can they put a lien on our property? I think not on our homestead but we have some property that is not covered by homestead.Also can they touch any non IRA funds in our bank if the judgment is granted?If a judgment is granted do I have the opportunity to file a lawsuit to remove it?.
State/Country relating to question: Texas
most of it is covered in the question
Good morning,I'm sorry to hear of the situation.How long has it been since they finished the pour and technically you owed the money---had the job been done properly? Have you had another "experienced" concrete company evaluate the situation yet?Doug
The original construction was in August 2011.
The contractor uses a sub-contractor to do the actual work.
The agreement with the original contractor was when we re-poured the sidewalk it would be with a sub-contractor I selected and paid by them because I was not happy with the craftmanship of the original sub.
The sub that was going to re-pour looked at it and didn't think it was very good but he had to remain nuetral since he would be working for the contractor.
Good morning,Thank you for the information.But I need to know the date when the job was finished. Was that August as well?
Yes..I don't know the exact date but it was in August...
Thanks.Under the laws of the State of Texas, in order for a contractor to assert a valid lien against a homesteaded property, the contract must be in writing and signed by both the owner and the contractor before any work commences or material is furnished, and the contract must be recorded with the county clerk of the county in which the homestead is located. Secondly, also under Texas law, in order for a lien to be valid, the contractor claiming a lien arising from a residential construction project must file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the third calendar month after the day on which the indebtedness accrues. This was clearly not done. At this point you will not want to sign a written contract with the contractor. Neither your homesteaded residence, or your other property may have a mechanics lien placed against it under the present circumstances, so in that respect you are safe.It is unfortunate that the contractor only now tells you that they are not experts---especially after previously suggesting otherwise.Whether they will be entitled to any compensation for the work done---in the even of a suit---will depend on the facts of the case. And in this case, as you are not a concrete expert---you will need one to defend against the claim. It may be as simple as calling in a new contractor to look at what as done, when it was done, and render an opinion as to the cost of remediation now.Be sure to confirm in writing---not email, but writing certified return receipt---the most recent conversations INCLUDING the admission by the guy that they are no experts. With a copy of that letter in hand, if you are sued, you will have the ability to argue that the contractor may not legally evaluate his own work because he has admitted that he is not an expert and the court will not allow non-expert witnesses to testify as to opinions that are not common to the everyday person. A real coup in court for you.I suspect that ultimately, after you have another contractor look at the problems, write you a report and give you a repair estimate that you will be able to reach an agreement with the other contractor.As for the what ifs---if you are sued and lose. Your homestead is safe, but other real property could be liened with the judgment.Your cash, to the extent that it is an account and not protected by being in a retirement fund like an IRA or a 401K can be levied on.If a judgment is issued against you---there is no lawsuit you can file to remove the judgment. Unless you were to actual appeal the judgment to the higher court---the judgment would remain until satisfied by your payment. Then a Satisfaction of Judgment would be filed.You seem to have the upper hand right now. the best approach I think is to get another concrete contractor out there for a thorough inspection and get that letter off to the contractor.I hope that you found my answer informative, that you are accepting of my efforts and that you will rate my efforts based on the knowledge I have provided to you.I wish you the best in 2012.Thank you.DougLawTalk41057.5180763542
I've more than 27 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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