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Can I file a mechanics lien or sue for unpaid work that has been completed if there is email documentation of agreed upon terms?

I was asked to paint a house in a city that was an hour and a half away. When given the total that the client’s insurance stated that they would cover, I agreed to paint the house for that amount, plus fuel charges. This was also a documented agreement. On the first day of work, I soon realized, upon inspection of the property, that this was no “average” paint project. The house was covered in severely damaged and peeling lead paint. I immediately called the client to inform him of the new circumstances, estimated that the cost would certainly be several hundred dollars more expensive to apply a costly product to re adhere the existing paint so that it could be concealed with new paint (per EPA guidelines), in lieu of the much more costly option of hiring a hazmat team to remove and dispose of the lead based painted siding, then have the added cost of new siding and installation. He agreed to the cheaper alternative of applying a more costly product to conceal. Once condition was known and neseccary material cost increase was approved, work progressed. The material costs ended up being almost $800 more. He has since decided that he will only pay for the original amount that was agreed upon via email. The work was completed on 4/23. Of the original amount agreed upon ($3,169.77, which does not include any of the additional costs incurred), only $1,000 has been paid. I financed the job on my personal credit card consisting of material and equipment rentals totaling $1,448 (no mark up, client was supplied with receipts of charges as they were incurred over the 2 week period) and have since paid interest on those charges. Do I have any recourse to recover the additional charges since A.) the original agreement was an informal email agreement, B.) the increase in cost was verbal and “on the spot”.

1 reply

May 18, 2018

That's a tough situation. It's worth noting first that (1) email exchanges can potentially establish a binding contract, and (2) in Colorado, construction contracts exceeding $500 are required to be in writing. In a situation where the scope of work and the materials for a project have undertaken serious changes and a new price has been agreed to, a claimant's argument that a new contract was established, or at least that the contract has been modified, would seem to be a fairly strong one. However, as mentioned above, Colorado construction contracts exceeding $500 should be in writing. Thus, it would likely be tough to argue that the written agreement for work should be ignored in favor of a verbal agreement. Note, though, that if certain portions of a lien claim are disputed, a claimant can typically reduce or even release their lien claim without much incident. In Colorado, there are penalties for exaggerated liens (namely, forfeited lien rights and liability for attorney fees), but that only comes into play when a person "files a lien under this article for an amount greater than is due without a reasonable possibility that said amount claimed is due and with the knowledge that said amount claimed is greater than that amount then due..." pursuant to § 38-22-128 of the Colorado lien statute. So, when there's a reasonable basis for include amounts that could end up being improper, a lien claimant will likely not run into liability for excessive amounts claimed. Of course, a mechanics lien isn't the only recourse for recovering payment - though liens are likely the most powerful and accessible option. Other legal claims - such as an unjust enrichment claim - may also be available to a claimant. Finally, it should be noted that the mere threat of a lien claim or legal action is often enough to spur payment. Further, in Colorado, a Notice of Intent to Lien is a required document. So 10 days prior to any lien filing, this "threat" would be required anyway.

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