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What can I do to get my money based on a verbal agreement?

WashingtonChange Orders
Anonymous Subcontractor

We are a subcontractor and have already finished the job and received final payment from the GC. The only thing we have not gotten paid for was the very last Change order we had sent them back in November. We had already signed and sent in the Final Waiver of Lien because we thought everything was paid for. They say that (even though we already sent them our own version of a change order) we should not have done any of the work since they did not issue an approved work order before hand. Is there any way for us to get our money?

1 reply

Matt Viator
Construction Lawyer
Levelset Admin at Levelset
| 1,008 reviews
Mar 6, 2020
Change orders should always be put in writing, regardless of the comfort level between the parties. It's just like using a written contract: A validly executed change order serves as an actual amendment to the contract. When change orders are put to writing, the work is clearly authorized, the scope is clear and defined, and the price is obvious. When change orders are not put to writing, the potential for disputed change orders shoots up dramatically and there's a higher risk of going unpaid for the work. Further, sending a final lien waiver will generally waive all lien rights for the project. Unless it's been indicated somewhere on the lien waiver form (like in the "Exceptions" section) that some work was done but not paid for, then a final lien waiver is just that - final.

Recovering payment after giving a final lien waiver

If a final lien waiver has been submitted, then mechanics lien rights are likely out the window. While it's unlikely, it's possible that some terminology on the waiver might reserve the right to lien for amounts that haven't been paid for though - so it may be worthwhile to pore over the waiver that was given. Further, if the contract calls for a specific change order process, and if that process isn't actually followed, then there's a chance that payment won't be recoverable for the change order. As mentioned above, that could render the work essentially "unauthorized." If the contract does not call for a specific process, it might be easier to make argue that the change order was authorized and potentially pursue the debt via a breach of contract claim. Finally, even if the work wasn't authorized by contract, it's still possible that work performed pursuant to an undocumented change order could be recoverable under a theory like unjust enrichment. But, regardless, if legal claims become necessary, it'd be wise to consult a Washington construction attorney so they can review the situation then advise on how best to move forward and get paid.

Less-aggressive recovery tools can still lead to payment

With all of the above being said, some less-official recovery tools might help with payment. For one, prodding a customer with payment reminders may convince them to do the right thing and pay what's owed. Or, escalating the matter by sending a payment demand letter could let them know you mean business and that you're willing to do whatever it takes to get paid. And, if there's an argument that the work is lienable - potentially because the final lien waiver didn't actually waive the right to lien for change orders unpaid - then sending a Notice of Intent to Lien could get the job done, too.
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