Massachusetts Troubled Home Improvement Projects: Problems And Options

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. But, their story frequently is of little value to me 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 at 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 about common problems affecting many Massachusetts homeowners, giving them a better understanding of their problems and possible options. In this article, I will reference seven articles I have written which will address some of your problems and options.

I am going to give you the truth, as I understand it, for those who find themselves with home improvement contract (HIC) problems. And, unfortunately, a lot of it is not pretty. And, these are only my observations and comments and should not be considered to be legal advice. Because, they are not intended to be legal advice. They are only intended to help you better understand your problem and what you might do to mitigate it. These are, quite simply, only educational materials.

If someone wants to discuss the problems they have with me, I will expect them to have first read any of the applicable articles mentioned in this article that are relevant to their problem. Assuming you have read the various articles referenced herein, and after you have prepared the one page summary of your problem discussed later, I will discuss briefly with you your problem over the phone for ten minutes without charge. But, 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. I don’t review 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.¹

¹ The thousand plus pages of material on my website – www.sauerconstructionlaw.com - are free to those interested in this information but which were developed at great cost to me. If you can find an attorney website with anything approaching this depth of material, I would sure like to hear about it.

I suggest that you review a variety of free information that I am going to refer you to so that you can better understand your problems and what options and solutions might be available to you. These are all articles I have written which may deal with aspects of your problems.

These are in the ‘Construction Law Articles’ (CLA) section of my website - www.sauerconstructionlaw.com – or in my newsletters, ‘Squibs’, also on my site. Buttons to reach each of these sections are contained on the first page of my site.

In the “Squibs”, we have: “Protecting Homeowners With Their Massachusetts Home Improvement Contracts”.

These different articles tell homeowners the kinds of things that they should have done or should be doing prior to commencing their home improvement projects. And, to the extent any particular homeowner wants to understand their present predicament, they can compare what they did or did not do with their own project.

There are over one thousand pages of material on my site, all of it available to you without cost. However, I do not review any actual specific homeowner problems without a written fee agreement (a legal requirement) and a retainer after the one free ten minute telephone conversation.

II. AN OUNCE OF PREVENTION - UNFORTUNATELY, OFTEN NOT TAKEN - IS WORTH A POUND OF CURE.

Good lawyers can help you most before you commence construction and, to a lesser extent, to help manage any problems as they arise. And, that is important to understand. And, what good lawyers also often do is to do everything possible to keep their clients out of court, which is expensive, time-consuming and where the ultimate result can’t really be anticipated.

A good lawyer can help you minimize problems, preventing them - in some cases - and managing them, in other cases. This requires, to be most effective, that homeowners educate themselves as to some of the things referenced in this article prior to commencing the construction process. And, that involves getting the lawyer involved in the earliest phases of a home improvement project.

Unless you are an architect, engineer, contractor or have prior construction-related experience, you are doing something more or less for the first time. But, this is something that your home improvement contractor does every day. By not knowing the information referenced in this article, you put yourself into a position of disadvantage. And, it is a sad fact that some home improvement contractors take advantage of the ignorance of the homeowners they deal with.

Again, my sense is that people don’t look for this information before they start their projects. This article points out what some of the typical problems are and some ways that they might be avoided or minimized, especially with prior planning and knowledge prior to commencing an HIC project.

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. My greater 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 an HIC project. Irrespective of how good any particular lawyer is, s/he is not likely 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.

And, my 46 years of experience can really help homeowners who took advantage of numerous articles I have written, which might have made your current situation unnecessary. Hopefully, some of this information is of some use to you now.

If you are really in the soup now, your options and what I can do for you that you can afford are going to be limited, in most cases, and more expensive than they might have been had the homeowner done his/her homework at the very beginning of the HIC.

III. MASSACHUSETTS HAS EXTENSIVE STATUTES DESCRIBING WHAT SHOULD BE CONTAINED IN A HOME IMPROVEMENT CONTRACT (HIC).

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 HIC. The state does have a suggested sample contract. In this article, we go through that contract line by line to explain the different things that are supposed to be in your contract and why.

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

And, we have in the CLA section of my site: “Specific Strategies To Assist Massachusetts Homeowners In Getting What They Are Entitled To From And Under Their Home Improvement Contracts And Projects”. This takes a project from its very first steps from design, through the preparation of a contract and through contract performance to tell readers the things that they should be doing and why. I consider it one of the best things I have ever written and on this website, there are more than one thousand pages of material. Again, these strategies help to prevent problems or provide better ways of managing them, in some cases.

But, my experience has been that those involved with the construction process – whether homeowners or even subcontractors and general contractors – don’t avail themselves of these resources until they have a screwed up situation, which, frankly, they contributed to with their ignorance of how these matters should have been handled.

IV. MECHANICS’ LIENS.

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 CLA 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 filing liens. And, prior to a trial – or motion for summary judgment, which is a step that would only be taken deep in the legal process just before trial – no judge will be looking into the validity of the contractor’s claims underlying the lien.

And, with a lien on the title of 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 good news is that you can always ‘bond off’ the lien with an insurance company. You don’t need the contractor’s permission or acquiescence to do so.

And, the initial two steps with a lien are tied into when your contractor last worked. 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 the general contractor or any other subcontractor last worked on the job – not just the contractor filing the lien – 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 the lien is clearly late.² Also, my experience has been that while contractors might take the first two steps in filing a lien, they won’t always take the third step, which is the filing of suit. (That step is expensive for them, also.)

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 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.

² 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 homestead. Secretary Galvin’s website (https://www.sec.state.ma.us/rod/rodhom/homidx.htm) explains how to do this.³ 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.

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.

V. PROBLEMS. OPTIONS.

The following list is not exhaustive but discusses may of your potential options.

1. NEGOTIATING A SETTLEMENT.

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, which is very expensive.⁴ Litigation will generally take up a lot of your time and sometimes one or both spouses may simply not have sufficient emotional energy to deal with it.

2. LITIGATION IS VERY EXPENSIVE.

What people don’t understand is that in most cases, it doesn’t matter whether you win your case or not as to your ability to recover attorneys’ fees and costs, which can be very expensive because of how extensive court processes can be.⁵ Generally, absent a contractual

³ If both husband and wife own the house, it is usually good practice for each person to file their own individual declaration of homestead.

⁴ You might want to read an article on my website - www.sauerconstructionlaw.com – under the ‘Construction Law Articles’ section entitled ‘The Litigation Process in 2012’. There is a button on the first page of my site for ‘Construction Law Articles’. This explains what happens with a court case and identifies a lot of the key events and activities in it. While some activities can be minimized to some extent, such as with the taking of depositions, a lot of these activities are required by a variety of applicable rules and processes. Your lawyer has to comply with these requirements and there are a lot of them. Court cases take many years and are going to cause you to incur legal fees and expenses in the several thousands of dollars. If your matter takes several years to resolve, it will likely cost in the tens of thousands of dollars if the appropriate applicable steps are taken. The sad fact is that most people simply cannot afford any period of litigation. Yet, it is litigation that may be required in order to solve or to try to solve your problem.

⁵ You might wasn’t to read Squib # 26: THE RECOVERY OF ATTORNEYS' FEES IN MASSACHUSETTS LITIGATION.

Provision otherwise, the winning party does not get an award of any of its attorneys’ fees and costs necessary to get a judgment against a party. You could have put yourself in a position to possibly collect attorneys’ fees if you win your case by simply inserting into your contract when you negotiated it an attorneys’ fee provision, which would only be one or two sentences.⁶

3. WHAT WILL IT COST.

Homeowners ask me ‘how much is it going to cost’? 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?⁷ 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.⁸ 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.

4. HIRING ANOTHER CONTRACTOR.

You might want to hire another contractor to take over this project. This is not as easy as it sounds. For example, 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, such termination being based on a claim of material breach of contract. And, if you do terminate your contractor claiming material breach of contract, your contractor might contest the termination, claiming that the termination is wrongful, potentially exposing you to damages by a suit that the contractor might file against you.⁹ 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 schedule, 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.

⁶Before the pandemic broke, an average period of time for a civil superior court case to come to trial was five years. Since the courts were closed during some of the pandemic, those times may be longer now.

⁷ 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.

⁸ 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.

⁹ This problem could have been greatly minimized by your inserting a ‘termination for convenience’ clause in your contract with your contractor.

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).

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.

5. PROTECT THE PHYSICAL INTEGRITY OF YOUR HOUSE AND, EVEN MORE SO, YOUR FAMILY’S HEALTH AND SAFETY.

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.

6. SHOULD YOU CONSIDER LITIGATION, SOME THOUGHT MIGHT BE GIVEN AS TO WHETHER OR NOT YOUR CONTRACTOR IS LIKELY TO BE AROUND (I.E. STILL IN BUSINESS AND WITH ASSETS) IN FIVE YEARS TO PAY ANY JUDGMENT YOU MIGHT OBTAIN AGAINST HIM/HER.

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 they are likely to be in business in five years and, therefore, have a potential ability to pay a judgment for money damages you might obtain against them. 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 (hard to prove) and fraudulent conveyances 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.¹⁰ 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.

VI. 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 you want me to look at your problem, prepare a succinct one page statement of your problem that should indicate that you have read those articles referenced above applicable to your problem. And, I do not review any other documents for free.

I will then discuss your problem with you over the phone for ten minutes. That discussion should indicate to me that you have read the things referenced above applicable to your problem. 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 not explain again something that you should already have read in the seven articles which I have referenced above. I will end the telephone call if it becomes clear that you have not done your homework by reading such articles as seem appropriate.

Beyond that will require a written fee agreement (a legal requirement of lawyers by one of our regulating authorities) and the payment of a retainer¹¹. 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 seven referenced articles.

Has your lawyer provided you with this amount of extensive information without charge and at this level of experience? We both know the answer to that. For, if s/he did, you wouldn’t be reading this.¹²

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.

¹⁰ 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)

¹¹ A ‘retainer’ is simply a deposit that I will hold in a separate bank account from my own bank account, governed by lawyer rules, that will be applied to your first bill(s). It is not a fee or charge simply to take on a case or matter. ¹² I do not review the work of other lawyers or give second opinions as to the recommendations or work of another lawyer.