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No Contract for deck repair, Contractor proposed hourly rate, then tripled it, work negligent

New YorkLien DeadlinesMechanics LienPayment DisputesRight to Lien

We agreed to a deck repair which had 3 components: 1. Remove approximately 25% of wood on deck to gain access to leaking membrane underneath and replace leaking membrane with new one; 2. Correct angle of membrane so that water did not accumulate and remain on membrane, but instead drain into gutters, and 3. Replace wood on deck and re-stain. Contractor was asked to provide an estimate but demurred, saying that an hourly rate of $125 per hour for a two man crew "was better for the consumer". Since we would be present during the entire project and could thus verify the time spent, we agreed. We carefully noted arrival and departure time of crew each day, beginning when track pulled into driveway and noting when lunch was had. Contractor was never personally present, just sent workers over and stopped by once or twice for 30 minutes during the approximately 3.5 days it took. At conclusion of work, contractor billed for three times actual hours worked, claiming he paid crew on this basis. Refuses to adjust hours, and now threatens lien and/or lawsuit. In the two months since this occurred, it has come to or attention that the work was negligent, in that the membrane was improperly positioned so that water now pools on the membrane even worse than it did before. Deck will have to be re-worked by a competent contractor and may have to be re-stained once all the wood is ripped up. Are we correct that in New York, absent a written contract no lien can be placed? We are talking about a $6,000 job that he is billing at $18,000, although he never provided a breakdown until we provided him with our carefully recorded hours. He just made it up. What steps can we take to protect ourselves from this dishonest scam artist? Thank you very much.

1 reply

Nov 12, 2018
There are a few things to consider here:

1) Written Contract in General for Home Improvement

New York generally requires that any contract for "home improvement" to be in writing, be in English, and be signed by all the parties to the contract (as well as contain certain information, including information about the possibility of mechanics liens). Violations of this provision can subject the contractor to civil penalties, but is not directly related to the ability to file a mechanics lien. If work was done on a home, it is likely that these requirements apply and the contractor may be adverse to calling attention to any potential violation.

2) Licensing and Mechanics Liens

New York also has strict licensing requirements. If the claimant is required to have a license, the claimant must be licensed and authorized to do business in New York in order to claim a lien. If a direct contractor on a residential home improvement project lacks a home improvement contractor’s license the contractor is not allowed a lien on the property and is also forbidden form filing a breach of contract action.
<br 3) Timing and Mechanics Liens

In New York, a mechanics lien claimed pursuant to work on a residential project, may be filed at any time during the project and within 4 months after the completion of the contract, the final furnishing of work or materials, or the final performance of the work.

4) Exaggerated Lien Claims

In New York, a lien that is willfully exaggerated is void. The claimant will also lose the right to file another lien for the same claim. What’s more, if a court finds that the lien has been willfully exaggerated, the claimant will be liable for the damages of the owner or contractor. However, it can be difficult to prove the lien was willfully exaggerated, at least in a quick manner.

5) Does All This Matter Practically?

While the above factors pretty much come down on the side of the homeowner, does it really matter? The fact of the matter is that, while the contractor may not have the ability to file a valid or enforceable lien - that may not matter with regard to whether he can "practically" file a lien. The recorders offices rarely act as gatekeepers (although New York will often reject lien that are untimely) to prevent the filing of liens that may not be enforceable. This may mean that a contractor, if he really wants to, could likely get a lien filed whether or not valid and the owner would either need to 1) get the lien removed; 2) wait it out until it expires; 3) fight the lien's validity if it is attempted to be enforced.

A property owner may be more proactive and initiate his/her own suit for the defective workmanship, and/or make complaints to the contractors board.
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