Problems and Options in 2023 for Massachusetts Homeowners With Troubled Home Improvement Projects

by Attorney Jonathan Sauer | September 16, 2023

I. INTRODUCTION

I get frequent calls from homeowners concerning home improvement projects they have that have gone south. They always want to tell me their story, the litany of their woes, including what their contractor has done or not done. But, their story frequently is of little value to me - or to them - because it is not organized or structured in such a way as to take into consideration the information contained within this article, which summarizes some of the extensive information available to you on my website, www.sauerconstructionlaw.com. It wastes both of our time and your money for me to give you this information while first discussing your problem.

So, it made sense for me to make some general comments on my website about common problems affecting many Massachusetts homeowners so that homeowners can have a better understanding of their problems and possible options. In this article, I will reference several articles I have written which will address some of your problems and options. Depending on your knowledge level and interest level, there are any number of other articles on my website that may assist you in trying to understand what your problems and options are.

These are found in two places.

The first place is my “Construction Law Articles”.

The second place is my “Squibs”, which are my newsletters.

There is an index for each of these at the beginning of each section. Buttons for each of these areas are located about two-thirds down the first page of my homepage. For the purposes of this Article, I’ll assume as a model that we have a contract for about 150k for a fairly major piece of construction: say, adding a room or two and a bathroom. Possibly, even adding or modernizing a kitchen (For construction purposes, bathrooms and kitchens are the two most expensive rooms in most houses).

Many homeowners call me wanting to discuss their home improvement contracts (HIC) and their troubled Home Improvement Projects (HIP). I have directed them to this article so that they can have the benefit of being given a lot of background information at no cost to them, much of which they need to decide what to do.

Some people who are reading these words maybe considering having me represent them. Assuming I agree to take your matter on, lawyer regulations require, first, that they read and sign a written fee agreement. And, for all new clients for a first file, I will need a retainer which is, essentially, monies to be applied to their first bill(s). And, before I can really consider representing your interests, I will need the short, written summary discussed in Section XVII below.

II. MASSACHUSETTS HAS EXTENSIVE STATUTES DESCRIBING WHAT SHOULD BE CONTAINED IN A HOME IMPROVEMENT CONTRACT (HIC) WITH REGARD TO A HOME IMPROVEMENT PROJECT (HIP).

Massachusetts has very extensive statutes regulating home improvement projects. These are found at Massachusetts General Laws (MGL) Chapter 142A. They do not cover the construction of new houses.

What needs to be included in these contracts is stated in Section 2 of this statute, which requirements are as follows:

“(1) the complete agreement between the owner and the contractor and a clear description of any other documents which are or shall be incorporated into said agreement;

(2) the full names, social security numbers, addresses, exclusive of post office box addresses, registration number of the contractor, the names of the salesperson, if any, who solicited or negotiated the contract and the date when said contract was executed by the parties;

(3) the date on which the work under the contract is scheduled to begin and the date on which said work is scheduled to be substantially completed;

(4) a detailed description of the work to be done and the materials to be used in the performance of said contract;

(5) the total amount agreed to be paid for the work to be performed under said contract;

(6) a time schedule of payments to be made under said contract and the amount of each payment stated in dollars, including all finance charges. Any deposit required under the contract to be paid in advance of the commencement of work under said contract shall not exceed the greater of one-third of the total contract price or the actual cost of any materials or equipment of a special order or custom made nature, which must be ordered in advance of the commencement 2 of work, in order to assure that the project will proceed on schedule. No final payment shall be demanded until the contract is completed to the satisfaction of the parties thereto;

(7) the signatures of all parties shall be affixed to the contract;

(8) there shall be a clear and conspicuous notice appearing in the contract: that all contractors and subcontractors must be registered by the director and that any inquiries about a contractor or subcontractor relating to a registration should be directed to the director; of the registration number of the contractor or subcontractor; of an owner's three-day cancellation rights under section forty-eight of chapter ninety-three, section fourteen of chapter two hundred and fifty-five D, or section ten of chapter one hundred and forty D as may be applicable; of all warranties and the owner's rights under the provisions of this act in ten point bold type or larger, directly above the space provided for the signature, “Do not sign this contract if there are any blank spaces”;

Having reviewed dozens, possibly hundreds, of HIC, I have yet to find even one that complies with all of the requirements of these various statutory requirements.

It is very easy to look at these. Simply type into your search bar “Massachusetts General Laws” and you will come up with a URL of the Massachusetts legislature. Once you get there, you will access to all of the General Laws.

On my site, under the Construction Law Articles section, we have: “Massachusetts Home Improvement Sample Contract With Comments”. This tells you what elements have to be contained within your home improvement contract.

Massachusetts does not have a required contract for home improvement projects. But, by statute, many things are required to be in/addressed by an HIC. The state does have a suggested sample contract. In the article just referenced, we go through that contract line by line to explain the different things that are supposed to be in your contract and why.

That suggested contract requires defined start and end dates for your contract. Without having these, how can you force a contractor to come and finish your job, particularly where there isn’t enough money left in the job to finish the work that remains? Or, because s/he can make more money working on some other job?

But, at the stage you are presently in, knowing what should have been in your contract may not be much help.

III. THREE INITIAL FUNDAMENTAL STEPS/CONCERNS.

One of the perennial bestsellers is a famous book with hundreds, sometimes thousands, of pages. A great many people who buy it don’t read it. And, we all have some problems with understanding portions of it.

The the last quarter or so of this book is about a carpenter. And, this carpenter, widely regarded as being a pretty smart guy, stressed the importance of building a house upon a strong foundation.2 In like manner, one should structure the home improvement project properly.

My experience has been that homeowners do not reach out to a lawyer until the project is in trouble and they have made any number of mistakes, quite often serious mistakes.

My greatest skill is in preventing problems. But, at this stage, a great deal of that knowledge and skill is of little relevance, as what one hopes to do at the present time is simply to try to extricate oneself from a mess. That will almost always be more expensive and with fewer options and fewer prospects for success than might have been the case had the homeowner first educated himself/herself prior to starting a home improvement project. Irrespective of how good any particular lawyer is, s/he is not going to be able to bring you back to the same position that you were in or might have been in had you better prepared yourself prior to commencing the HIC process.

My experience has been that some judges aren’t as sympathetic to homeowners as a homeowner might think. These cases tend to be complicated and take a long time to try. They often have extensive paper exhibits. And, they think that the homeowner is there due to their own fault in not being better prepared/knowledgeable.

The three most important things to do when beginning an HIP are: (1) either have an architect design the project or, at least, review the contractor’s plan for construction; (2) enter into a proper contract that protects your rights; (3) do as many things as possible as are discussed in one of my Construction Law Articles: “SPECIFIC STRATEGIES TO ASSIST MASSACHUSETTS HOMEOWNERS IN GETTING WHAT THEY ARE ENTITLED TO FROM AND UNDER THEIR HOME IMPROVEMENT CONTRACTS AND PROJECTS.” I’ll refer to that article as “Strategies”.

The purchase of a house is the largest investment most people make. The amount of an HIC can often be the second most important expenditure one can make. And, improperly-done work threatens the physical integrity of one’s home.

Most homeowners I speak with have done none of these things.

Why? Unless you work in construction or are an architect or engineer, you are entering into a relationship and process that you don’t understand. But, one that the contractor very much understands.

One might say that they didn’t take one or more of these steps because their contractor was so convincing in making his presentation!

One might say: “S/he really cares about my project!” But, s/he doesn’t. S/he’s in business, like any other business, to make money - as much as possible. Performing HIPs is how s/he does that.

2Matthew 7:24-27 4

One might say: “S/he says s/he’ll prepare the contract.” But, how can one think that a contract prepared by one party won’t favor that party’s rights? Since it’s your money - and, usually, borrowed money - letting the contractor do this is often akin to having the fox guard the henhouse. That always puts the fox in a better position than it does the hen.

One might say: “S/he says s/he’ll design the project.” But, how do you know whether or not that design is a good design, that it covers the issues that it should consider? That it isn’t too much a design? Or, not enough of a design? Quite frankly, you can’t.

The farther you get away from the principles discussed in Strategies, the more likely it is that you are going to have problems.

Homeowners will allow the contractor free reign doing these things listed above because doing so has the initial appearance of saving them money. But, if you are reading this article, chances are that it didn’t.

You are reading this because your HIP is in trouble. Perhaps you have overpaid the contractor and there isn’t enough money in the contract left to finish the job or correct its problems. Or, perhaps, you can’t get your contractor to come back and complete its work and/or fix its problems. Maybe, both.

I’ve been involved with construction law for more than 47 years. The greatest skillset of those who know what I know is to prevent problems before they develop. If not brought in at the earliest stage to prevent problems, then, perhaps, brought in later to help manage the problems as they are are developing.

But, if your HIP is not going well and you have a whole host of problems, what you are doing at this stage might seem as if you are cleaning up a mess. That’s because you didn’t give sufficient attention to having advice as to what should be in your construction contract before you signed it. And, by building to the contractor’s plans and specifications - assuming s/he has any - again, your best interests were not protected. Especially for larger and/or more complicated projects, an architect should have been at least supervising the work and project.

It was Ben Franklin who used to say ‘an ounce of prevention is worth a pound of cure’. He was a pretty smart fellow excepting, possibly, in matters pertaining to lightning and electricity.

I, myself, prefer to deal with the ‘prevention’ situation. That is where a client can get maximum value with regard their Home Improvement Contracts (HIC) and Home Improvement Projects (HIP).

But, if you are reading these words after your problem has developed and you have not previously read other important articles on my site, such as SPECIFIC STRATEGIES TO ASSIST MASSACHUSETTS HOMEOWNERS IN GETTING WHAT THEY ARE ENTITLED TO FROM AND UNDER THEIR HOME IMPROVEMENT CONTRACTS AND PROJECTS, what we will ultimately be discussing is whatever remedies are available to you. In all 5 likelihood, they will not be as many as would be the situation if you have read these articles and have done what they suggest before you entered into an HIC for your HIP. And, whatever remedies you wish to pursue - especially litigation - will be more expensive than if we were dealing with the before preparation and not with the after lack of preparation.

IV. PROBLEM ONE: LAWYERS’ LETTERS SELDOM WORK.

One of the first things many potential clients ask me is ‘how much would it cost for you to send a letter?’?

The answer is a lot more than you think it should cost. Because, to prepare such a letter with any chance of success, the lawyer is going to have to have a thorough understanding about what happened with your job. The contract will have to be reviewed. Having an understanding of what happened from the first contact you had with the builder up until the present will usually involve reading many emails and text messages. What the various change order disputes are will have to be understood. The problems with the billing have to be understood. What work remains to be completed and what work that has been done has to be corrected will have to be understood. In any kind of reasonably complex situation, to understand all of these things and then write a letter is going to burn through a lot of hours. Let’s say probably five or six hours. Boston lawyers at my level of experience are probably charging somewhere between five hundred dollars an hour up to nine hundred dollars an hour.3

And, my experience has been that lawyers’ letters don’t really work all that often.

Why? Well, assuming your contractor is a legitimate company interested in fulfilling its contractual obligations, it’s not likely that you would have to send them a letter in the first place.

You are wanting to send a letter because your contractor doesn’t seem to meet that criteria. If they have done a poor job with your HIP, it’s more than likely that you are not the first unsatisfied owner they have had. Contractors of that ilk have probably received many lawyers’ letters.

These type of letters don’t faze that type of contractor because they understand the litigation process a lot better than you do. They know it can take five years to come to trial in the superior court. They know that this is potentially going to cost you a lot of money. And, they know it’s likely that you will not be able to afford this. That, at some point, you will drop your case for that reason. That what they have to do is simply wait you out.

Even when they are sent a C. 93A demand letter - required before you can sue them for unfair and deceptive trade practices - I don’t think one-quarter of the letters I have sent have actually produced a true, productive response. 3

I don’t charge anywhere near that. But, it’s still a fairly big number for me to write that letter if I am going to do it right.

In most cases, the sending of one letter will not solve the problem. Contractors who understand the process, quite often, are willing to just sit and wait you out. Unfortunately, for them, that’s a successful practice a lot of the time.

You send them a letter. They send you a response. Then, you send them another letter. And, they send you a response. Then you send them a third letter. And, they send you a response. It might look to some that this process looks a lot like playing ping pong or tennis.

V. PROBLEM TWO - YOU USUALLY CAN’T COLLECT YOUR ATTORNEYS’ FEES IF YOU GO TO COURT, EVEN IF YOU WIN.

So, perhaps, you decide to sue.

Elsewhere on my site, you can find an article explaining the litigation process. In the superior court - where larger problems are litigated - construction cases take about five years to come to trial.

Most homeowners simply can’t afford to go to court. Or, even if the homeowner can afford to start the litigation process, s/he simply can’t afford to take that process to a finish. To go to trial, there are lots and lots of steps that have to be taken. And, they can be expensive. And, litigation can be unpleasant and some who can afford their case simply, at some point, want to end the stress of that case. These are some of the main reasons why only about one percent of all civil cases actually go through a complete trial.

YOUR HOME IMPROVEMENT CONTRACTOR KNOWS AND UNDERSTANDS WHAT IS STATED IN THE LAST PARAGRAPH! But, you probably didn’t until you read this article.

If you had an attorneys’ fee provision in your contract, you would be entitled to recover them if you win your case. The very fact that your contractor knows that might keep him/her performing at a higher level on your job. Because s/he doesn’t like paying his/her own attorney. And, s/he especially doesn’t want to pay your attorney.

In fact, if the home improvement contractor knows that you have an attorney involved with your project from the beginning, there is a greater chance that s/he will perform better. With an attorney involved from earlier in the project, there is a good chance that you are not going to have to deal with the kind of problems that are causing you to read this article.

Without having an attorneys’ fee provision in your contract, the only way you can recover your attorneys’ fees is to have a recovery under a statute that provides for them, such as getting a judgment under MGL C. 93A, the statute describing unfair and deceptive trade practices.

Recoveries under that statute can include either double or three times your actual damages, plus a recovery of your attorneys’ fees.

But, as stated above, there may only be a one percent chance that your case might actually go through a trial. And, recoveries under that particular statute are infrequent.

Not having an attorneys’ fee provision in your contract and not having a recovery under C. 93A, by statute, the amount of your recovered attorneys’ fee will be either $1.25 or $2.50!4 That is not a misprint!

VI. PROBLEM THREE: MECHANICS’ LIENS.

Quite often, a contractor will threaten to file a mechanic’s lien if you don’t pay them more money. A mechanic’s lien is a process where someone who wins their case can ultimately attach the equity you have in your home and have that pay their judgment. Scary stuff!

If a subcontractor or general contractor is either threatening to or has filed a mechanic’s lien against your property, you might want to read the following construction law article: “Massachusetts’ Mechanics’ Lien Law as of 2012”.

The bad news is that suppliers, subcontractors and general contractors have a statutory right to file liens. There is nothing you can do to stop them from doing so. And, prior to a trial or a consideration of a motion to dismiss or a motion for summary judgment, no judge will be looking into the validity of the contractor’s claims underlying the lien.

And, with a lien on your property, you will not be able to sell the property or, most likely, even refinance. Allowing a lien to remain on your title for any period of time might even be a breach of your existing mortgage, meaning your promissory note might be accelerated if your current bank finds out about the lien. (That means that you might owe the bank the entire remaining balance of your loan now, in one payment.)

The initial two steps of the lien process are tied into when your contractor last worked on your house. That’s a date you most likely know. So, if the first step is not taken by a contractor within 90 days of when that subcontractor or general contractor last worked on the job, there is some chance of getting rid of the lien. I have had a lot of success in getting contractors to dismiss liens when I can demonstrate that their lien is clearly late. 5 Also, my experience has been that while contractors might take the first two steps in filing a lien, they often won’t take the third step, which is the filing of suit. That step is expensive for them, as it is for you.

Keep in mind, though, that even when the contractor allows the lien to lapse through not taking a required step in a timely manner, banks reviewing liens on your title will usually want them taken off the title if you want to sell your property or refinance. My experience has been that banks consider any lien on your property as being valid when considering any situation where they are being asked to extend credit, even when you can conclusively prove to them that the liens are invalid.

4 One of life’s unfortunate untruths: “I’m from the government and I’m here to help you.”

5 The general contractor – the party you have the contract with – can generally sue you with a contract claim for a period of six years. Subcontractors – with whom you do not have contracts – can only sue you, generally speaking, through the mechanics’ lien law process and not otherwise.

Further good news is that you have an automatic homestead giving you 125k worth of debt protection against your creditors through a homestead by operation of law. And, for another $35.00, this can be increased to 500k by your filing a declaration of homesetead. Secretary Galvin’s website (https://www.sec.state.ma.us/rod/rodhom/homidx.htm) explains how to do this. 6 It has very specific instructions on how to file a homestead with even the actual form on his site. And, filling out the form is not complicated.

In addition to having one or both of these homesteads, which are protection against debt protection, for your contractor to be able to actually ‘get at you’, such claim will also be subject to an existing mortgage(s). If you take a 500k homestead and add it to a 350k mortgage, this makes you fairly unattractive in terms of a prolonged pursuit by a contractor. Being a smaller target is always better than being a larger target!

Apart from that, my experience is that subcontractors, in particular, frequently make mistakes with the filing of the lien, which mistakes might make the lien invalid. All discussed and explained in the above-referenced article.

VII. PROBLEM FOUR: WILL YOUR CONTRACTOR EVEN BE IN BUSINESS IN FIVE YEARS?

Since it may take five years or so to have the court processes progress to the point of your obtaining a judgment against an HIC contractor, something to think about is whether or not that contractor is likely to be in business in five years. Of every 100 new construction companies started today, there are statistics that suggest in five years only 34 of them will still be in business. Construction is an easy business to get into but a hard business to remain in.

If your HIC contractor is fly by night or just marginally in business, s/he may simply close this company down and start another one. Absent fraud (much harder to prove than you might think) and/or the fraudulent conveyance of assets for less than their actual value from the current company to a successor company, a successor corporation is not likely going to be responsible for the debts of a prior corporation.7 My recent experience has been that contractors don’t file bankruptcy as much as they did in years gone by. To file bankruptcy costs money. A lot of money. It’s a lot easier to just turn the lights out and lock the door.

6 If both husband and wife own the house, it is usually good practice for each person to file their own individual declaration of homestead.

7 You might want to read Squib # 49: WILL YOU OR YOU'RE NEXT CORPORATION BE LIABLE FOR THIS CORPORATION'S DEBTS? (PART 1 OF 2)

You can expend a lot of money and invest a lot of physical and emotional energy to go through a trial. Even if you win, that simply gives you a ‘judgment’. That’s a piece of paper that says you are entitled to collect a certain sum from the contractor. But, that’s not any kind of guarantee that the contractor will have the money to pay a judgment.

If you have read this article this far, it would be understandable if you are discouraged over your prospects. You may be asking: what can I do?

Let’s look at some options.

VIII. OPTION ONE: TRY TO JUST MUDDLE THROUGH.

Muddle through with your current contractor, hoping that at some point s/he’ll finish. A not very attractive prospect. Sometimes it works. A lot of the time it doesn’t.

You may have to use a carrot and stick approach. The carrot: ‘If you do X, Y and Z, I will pay you this much money’. The stick: “If you don’t do X, Y and Z, I will sue you.”

This type of option might help you avoid litigation. But, it is likely the project will take longer than you expected and cost more than the original amount of your contract.

IX. OPTION TWO: THREATEN THE CONTRACTOR WITH A BAD REVIEW ON ANJI.

Here’s a tip that might work for you. You might threaten the contractor that you will give that contractor a very bad review on places such as Anji. I currently represent a home improvement contractor who does about seven million dollars gross revenues a year, whose business began and grew almost exclusively using Anji.

A lot of people put a lot of stock in internet entities such as Anji. As a person who has little interest in shopping, I buy most of the things I need through Amazon. For many things I am not familiar with, I will usually review peoples’ reviews, which often lead me to a product or lead me away from a product.

Sure, you’ll find people whose problems have more to do with them than they do with the object they bought. But, if you review enough of these ratings, you can discount those reviews and see that many/most have common comments and themes. It often times makes a lot of sense to evaluate things you are thinking of doing against other peoples’ experiences. The common sense and experience of people is what underlies both the idea and the effectiveness of juries.

X. OPTION THREE: NEGOTIATE A CONCLUSION TO YOUR JOB WITH YOUR CONTRACTOR.

In some circumstances, you might consider trying to negotiate a conclusion to your HIC with your contractor, making sure that you get a ‘release’ – a form of legal document - from the contractor in which he gives up the legal right to make any claim against you or sue you. This can help you avoid mechanics’ liens and litigation.

You, in all likelihood, will pay more than you would like to. But, you can often end the dispute swiftly.

XI. OPTION FOUR: GET A NEW CONTRACTOR.

You might want to hire another contractor to take over your project. This is not as easy as it sounds. Generally speaking, if you have a contract with one contractor, the law says that you don’t have the right to hire another contractor until you terminate the first contractor’s right to proceed under the existing contract. Before you do so, you need to be able to prove - ultimately - that the termination was based on the contractor’s material breach of your HIC.

If you are going to do this, make sure you do it in writing. It usually will put you in a better position down the road to plan on sending at least two letters to your contractor.

The first letter should state what the issues you have with the contractor’s performance so far. Often times, it might be useful to already have quotes from potential second contractors you might hire to complete/correct the first contractor’s work. This way, your first contractor has a better sense that you are serious and you will be letting that contractor know, in advance, what kind of exposure it may have should you win. Usually, that would be the difference in price between the first and second contractors.

The first letter probably should have a ‘cure period’. That would be a reasonable amount of time for the contractor to deal with your complaints. You tell the contractor if your list of items is not corrected within a certain period of time, you will terminate the contractor’s right to proceed with the contract. Both judges and juries like to see that you gave your first contractor a reasonable ultimatum. And, that the contractor failed to adequately respond.

The second letter would be your termination letter.

8 You might want to read in the ‘Construction Law Articles’ of my site the article entitled ‘The Litigation Process in 2012’.

If there has been a material breach of contract, you would be entitled to recover from the first contractor the increased costs you incurred in finishing the job/correcting the job with the second contractor.

The contractor would have the right to contest the termination legally. In fact, the contractor could contend that your termination of his contract was, itself, a material breach of contract, which might entitle the contractor to seek and collect money damages, which might include monies s/he was entitled to be paid and what its anticipated lost profit might be as to work that s/he was not allowed to perform.

This would be a good stage to get some legal advice. If you intend on suing your HIC contractor at some point in time, having corrected his mistakes and completed the work, you will have actual incurred historical damages that will help you get a judgment against him for money damages (if you are entitled to one).

But, the problem is that by the time I talk with most homeowners, they have spent all of the money they have borrowed or have on hand for the project. Simply put, you may not have the money to correct and/or complete the project. And, in the short term, I know of no sure-fire way of getting money from your contractor without litigation, unless you can find some way to settle with the contractor on some basis.

To facilitate and prepare for a possible termination and the lawsuit that might follow, document any errors the contractor makes in construction, his refusal to correct improper/defective construction (his errors), his failure to meet a promise or contractual term, his not attending to the job, his overrunning his contract time, his not paying labor and material suppliers and subcontractors, etc. Documentation should be through emails and letters, never through text messages. And, take a lot of dated pictures and videos, which may be very helpful down the road should you get involved in litigation with your contractor.

If you are going to proceed with a second contractor, you might benefit from reading Strategies before you do.

XII. OPTION FIVE: SUE YOUR CONTRACTOR FOR DAMAGES.

Sometimes, this might seem to be the only available option. The majority of civil cases don’t go through a trial and settle on some basis. To prepare for this, you should be discussing this with an attorney.

If you ask your attorney how much this will cost, truthfully, the lawyer will most likely not be able to do that.

There is simply no way of knowing that or even providing any kind of a realistic estimate. Will a matter resolve itself with one good lawyer’s letter?9 Or, will the case end up in the Appeals Court after five or more years of litigation? Unless you can get a lawyer to take your case on a contingency fee – the lawyer only gets paid if you win your case and collect monies – you will be paying your attorney on an hourly basis. 10 I never take cases on a contingency fee basis. Not many experienced business lawyers do. And, frankly, I take very few homeowner cases for many of the reasons discussed in this article.

Unfortunately, most homeowners simply don’t have the ability to pay for any sustained period of litigation unless they can hire a contingency fee lawyer. And, your HIC contractor knows that. S/he may simply try to wait you out, which is a strategy that often works.

And, if you intend on suing your HIC contractor at some point in time, having corrected his mistakes and completed the work, you will have actual incurred historical damages that will help you get a judgment against him for money damages (if you are entitled to one). The court process does much better with your claim if you have incurred the damages prior to the trial. It does less well with estimated damages.

XIII. OPTION SIX: SMALL CLAIMS COURT.

For smaller claims/issues, there might not be enough involved to justify the cost of hiring a lawyer.

In Massachusetts, one can sue someone else for seven thousand dollars or less and have the dispute resolved in the Small Claims Court.

You don’t need to have a lawyer. Cases are heard fairly quickly and it is sometimes just the threat of having to appear at a hearing that gets a party against whom you have a claim more reasonable.

There is the old saw that a lot of cases settle on the courthouse steps. Civil procedure has changed so much in the 47 years I have been practicing law that this is less so now than it used to be. But, to the extent there is any truth to that saying, I will say that when one knows

9 This almost never happens. If your contractor has been in the home improvement business for any period of time, s/he already understands that there is little a lawyer can do to hurt them in the short term and outside of court.

10 The Massachusetts Bar Association has a ‘Lawyer Referral Program’. (https://www.masslawhelp.com/) You might find a contingency fee lawyer there. In many cases, these will be collection lawyers, not construction lawyers, who may have less knowledge and experience as to many of the things discussed in this article. But, it may be that only with the use of such a lawyer that you will be able to afford litigation.

s/he has to be in court for a hearing/trial, this terrifies many people. And, it is that terror that sometimes helps settle cases.

XIV. OPTION SEVEN: MEDIATE YOUR CLAIM.

Rather then getting involved with the courts - or, at least, as a preliminary step - you might see if your contractor is willing to mediate your dispute. Mediation can only take place if all parties agree to mediate their dispute.

Mediation is a more-or-less non-adversarial process whereby the parties go in front of a mediator, a non-judicial neutral (meaning, not a judge or arbitrator) for anywhere from between three and four hours - on the low end - to one day or more on the high end. Each side pays for one-half of the mediator’s compensation. Various organizations, such as the American Arbitration Association, offer mediation services. Many experienced practitioners use a group of about five to ten very experienced construction attorneys who are good at it, which is generally cheaper than the AAA and more likely to produce a positive result.

Through a controlled series of meetings, which are generally in conference rooms located outside of court facilities, the parties try to work out a solution to their problem. The mediator does not per se ‘decide’ the case. There is no written decision rendered. No one either ‘wins’ or ‘loses’. And, by statute, whatever happens in mediation is specifically exempted and kept out of any subsequent trial. This is to keep the mediation process confidential and to encourage the parties to deal with each other earnestly, not concerned about how whatever is said can be used later in subsequent litigation.

What normally happens is that the mediator will require each party to prepare before the meeting a mediation memorandum explaining the case and its position to submit before the hearing, exchanging copies with the other side. Then, the parties get together in a room, typically the conference room of the mediator. Each side may make an ‘opening’, explaining its claim or defense, which is usually done by your attorney and is something not likely to take more than ten or fifteen minutes. Then, the parties are separated for the rest of the day in separate rooms. The mediator goes from one room to the other. What each party tells the mediator is privileged in that the mediator can not reveal this information to the other side without the party’s permission. The mediator points out to each side the strengths of the other side’s position and the weaknesses in your side’s position. While all cases do not settle ‘in the middle’ a number of them will. At such time as there is a settlement, both sides will get together and the attorneys will prepare right there a hand-written memorandum of what the deal is and everyone will sign it. The majority of the cases I have been involved with in mediation have settled. Usually, unless your contract provides otherwise, mediation is not an alternative to litigation.

Usually, if the mediation process does not work, the parties can still go to court. In many cases, with reasonable parties and reasonable attorneys, this is a good preliminary step to litigation that might solve the dispute a great deal more quickly and at a substantially lower cost than would be the case with litigation.

XV. CONTINGENCY FEE LAWYERS.

It may be that the only feasible way for you to sue your contractor is to attempt to get a contingency fee lawyer to handle your case. Rather than pay a lawyer on an hourly fee basis, your lawyer will only get paid - usually, by a percentage of what is recovered - if the lawyer actually recovers money for you. I do not take on contingency fee cases.

Further information should be available concerning this option at the Massachusetts Bar Association, which has a Lawyer Referral Service.

XVI. NO MATTER WHAT YOU CHOOSE TO DO, TO THE GREATEST EXTENT POSSIBLE, MAINTAIN THE PHYSICAL INTEGRITY OF YOUR HOME.

It is important to try to follow some basic ideas whenever possible. Since your house is probably your largest investment, you need to make sure that it will not sustain damage through a period of no construction, particularly when construction stops at some point before its logical conclusion. If the roof leaks, fix it. If there is mold or mildew, it might be unsafe to live in the house, particularly for children. Although not used in recent years, living in a house with lead paint or asbestos can be dangerous. And, certainly, it is not a good idea to live in a house with a faulty mechanical system, such as unsafe electrical wiring or having an uncertain gas system.

Even temporary repairs might at least keep the status quo for a while. Disputes and lawsuits come and go. You might win, you might lose. The other guy might be able to pay a judgment. Or, perhaps, he can’t. But, if you are lucky, your house will always be there. Take care of it so that it can take care of you and those you love. XVII.

CONCLUSION.

This article is information that you might consider in light of or in addition to other information you might find, which could be suggestions another attorney might make. Another attorney might be more optimistic about your ability to get something that looks like justice from an HIC contractor.

If someone wants to discuss the problems they have with me, I will expect them to have first read at least the most applicable articles discussed in this article and others that are listed in my Construction Law Articles and in my Squibs (my newsletter). Buttons for each of these choices can be found about two-third of the way down my homepage.

If you want me to look at your problem, prepare a succinct written short statement of your problem that should indicate that you have read those articles referenced above applicable to your problem. What are you looking for? What are the problems? How much will it cost to correct the problems if you can’t get the first contractor to fix them? What are the contractor’s claims? How much have you paid him? How much would you be willing to pay him either to 15 finish or to go away? What money is available to pay a second contractor or to finance a mediation or a litigation. Even if I don’t take your case on, what is in that statement is protected by the attorney-client privilege.

Once I have your one page summary, I will then discuss your problem with you over the phone for ten minutes without charge. That is the only free ‘consultation’ I give a potential client concerning their problem. That discussion should indicate to me that you have read the things referenced above applicable to your problem and that you understand, generally, what your problems are and, generally, what your options are. I will not orally explain again something that I have already explained in writing, although I will answer very briefly any questions about what you have read (but all within the ten minute time period). I will end the telephone call if it becomes clear that you have not done your homework by reading such articles as seem appropriate or if you have not prepared an adequate summary of your problem. I do not review the work of other lawyers.

Hearing all of the things the contractor did or didn’t do is not useful to me except to the extent it shows you have thought about your problem in light of this information and you have some idea as to what options are available to you and what you would like to do. I don’t review any documents associated with a homeowner problem for free. I first require a written fee agreement (a legal requirement of lawyer authorities) and a retainer after the initial ten minute telephone discussion.11

The amount of information available to you for free from my site is not something you will likely find anywhere else. And, I’ve even provided this guide to direct you to the resources potentially most applicable to your situation, restating and summarizing some of the information contained at greater length in the several referenced articles.

As stated above, I take on very few homeowner issues with HIC’s. I will only do this if I think I can accomplish something positive for you and you have the financial ability to fund such action as might be necessary to try to enforce your rights.

11 The thousand plus pages of material on my website are without charge to those interested in this information. I spent a lot of unpaid time generating this information.