Can i take out some money for the contractor breached the contract after the work complete?

1 week ago

The contractor breached the contract. He deviated the contract and left the smoke and burned truss and plywood in the roof to make more profile for himself, also the 2 months schedule complete the work expired which screw my all the plan. Can I take out the amount which he didn’t use for the work, also How to claim and calculate the schedule delay (dollar/per day) loss amount?
Can the contractor file a lien to against me if I don’t pay him the full amount?

Senior Legal Associate Levelset

Anytime a contractor seriously deviates from their contract specs or project schedule, they’ve potentially breached their contract. What’s more, when there’s a good faith dispute as to the work that’s been provided, California owners are typically entitled to withhold retainage from their contractor. In either case, an owner may have a strong argument that they need not pay their contractor in full, since there are issues with the work.

As for how, exactly, to calculate what will be withheld – unless the contract for work was highly itemized, or unless their were specific damages available in the contract for falling off track with the project schedule, it might be hard to pinpoint precisely how much to withhold. But, deducting the amount it will or would cost to repair the work might be a good start.

Finally, as for whether a contractor can file a mechanics lien: Note that a claimant can typically file their lien claim, even in a situation where that lien would be flawed, improper, or even fraudulent. Recorders offices generally don’t have the bandwidth or the authority to investigate each claim that is made. Though, a mechanics lien claim that’s filed which exceeds what a contractor is owed will generally be invalid and unenforceable.

So, while the claim could be filed and appear in the public record, an owner should be able to successfully challenge a filed lien claim when the claim is overstated. Plus, additional damages and penalties come into play when a mechanics lien is fraudulently filed (though, not every mistake will amount to a fraudulent lien).

Finally, here are some resources that I think will be helpful here:
(1) I Just Received a Notice of Intent to Lien – What Should I Do Now?
(2) A Mechanics Lien Was Filed on My Property – What Do I Do Now?
(3) California Mechanics Lien Guide and FAQs

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