Builder is Suing for Warranty Work
10 months after close of escrow on our new home, we had a water intrusion from the supply line to our dishwasher. We had to push the builder to cover all the damages including pulling out cabinets & counters, replacing sub-floor and hardwood flooring. It has now been well over a year since the repairs and they are suing us for the work done saying that the we verbally agreed to pay. They never said it was not under warranty and never told us we would be responsible for the costs. Isn't a contract required -- they are claiming we owe them over $20,000. The attorneys we have talked to are telling us it could cost us this much or more to fight this.
Re: Builder is Suing for Warranty Work
If the builder sent you bills soon after the work was done,and you failed to protest them within a reasonable time, this may legally be an acknowledgment that the bills are correct under the principle of "account stated." An uncontested bill becomes a contract in itself, with some limitations and defenses.
Also, you state that the builder's position is that you verbally agreed to pay. Is this true? This you do not tell us.
Here is a partial list of legal issues that are likely to arise here:
(1) Was the work covered by an express or implied warranty in your initial contract with the builder?
(2) Was an oral modification or addendum to your initial contract permissible under its terms, or under the provisions of statutes governing such contracts? Civil Code section 1698(b) says "A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties." I take this to mean that if you orally ask your contractor to do additional work, and he does it, you are contractually obligated to pay. However, your contract may have a provision requiring modifications to be in writing.
(3) Was an oral modification made?
(4) Under your contract, must the parties submit disputes to arbitration or mediation first?
(5) Does your contract contain an attorney-fee clause under which the winner in a dispute must pay the legal fees of the loser? If it does, your legal fees are less of an issue as is whether you will win or lose.
(6) Is the contractor solvent?
(7) Did an "account stated" arise?
(8) Were you contributorily negligent in failing to discover and correct the leakage before major damage occurred?
(9) Even if there were no contract, is the builder entitled to recover from you on some kind of an implied contract or quasi-contract theory?
(10) What is revealed by any written or oral communications between you while you were trying to get the builder to respond to the damage? Surely some part of this is in writing?
Based on your facts alone, I am inclined to think you should win this case (on a warranty theory), but due to the many issues one can't be too sure, and the presence or absence of mediation, arbitration and attorney-fee clauses in the underlying contract, plus any express warranties, may be controlling. I would look for an attorney with experience in suing builders on a warranty theory.
Re: Builder is Suing for Warranty Work
If the builder sent you bills soon after the work was done,and you failed to protest them within a reasonable time, this may legally be an acknowledgment that the bills are correct under the principle of "account stated." An uncontested bill becomes a contract in itself, with some limitations and defenses.
Also, you state that the builder's position is that you verbally agreed to pay. Is this true? This you do not tell us.
Here is a partial list of legal issues that are likely to arise here:
(1) Was the work covered by an express or implied warranty in your initial contract with the builder?
(2) Was an oral modification or addendum to your initial contract permissible under its terms, or under the provisions of statutes governing such contracts? Civil Code section 1698(b) says "A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties." I take this to mean that if you orally ask your contractor to do additional work, and he does it, you are contractually obligated to pay. However, your contract may have a provision requiring modifications to be in writing.
(3) Was an oral modification made?
(4) Under your contract, must the parties submit disputes to arbitration or mediation first?
(5) Does your contract contain an attorney-fee clause under which the winner in a dispute must pay the legal fees of the loser? If it does, your legal fees are less of an issue as is whether you will win or lose.
(6) Is the contractor solvent?
(7) Did an "account stated" arise?
(8) Were you contributorily negligent in failing to discover and correct the leakage before major damage occurred?
(9) Even if there were no contract, is the builder entitled to recover from you on some kind of an implied contract or quasi-contract theory?
(10) What is revealed by any written or oral communications between you while you were trying to get the builder to respond to the damage? Surely some part of this is in writing?
Based on your facts alone, I am inclined to think you should win this case (on a warranty theory), but due to the many issues one can't be too sure, and the presence or absence of mediation, arbitration and attorney-fee clauses in the underlying contract, plus any express warranties, may be controlling. I would look for an attorney with experience in suing builders on a warranty theory.
Re: Builder is Suing for Warranty Work
If the builder sent you bills soon after the work was done,and you failed to protest them within a reasonable time, this may legally be an acknowledgment that the bills are correct under the principle of "account stated." An uncontested bill becomes a contract in itself, with some limitations and defenses.
Also, you state that the builder's position is that you verbally agreed to pay. Is this true? This you do not tell us.
Here is a partial list of legal issues that are likely to arise here:
(1) Was the work covered by an express or implied warranty in your initial contract with the builder?
(2) Was an oral modification or addendum to your initial contract permissible under its terms, or under the provisions of statutes governing such contracts? Civil Code section 1698(b) says "A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties." I take this to mean that if you orally ask your contractor to do additional work, and he does it, you are contractually obligated to pay. However, your contract may have a provision requiring modifications to be in writing.
(3) Was an oral modification made?
(4) Under your contract, must the parties submit disputes to arbitration or mediation first?
(5) Does your contract contain an attorney-fee clause under which the winner in a dispute must pay the legal fees of the loser? If it does, your legal fees are less of an issue as is whether you will win or lose.
(6) Is the contractor solvent?
(7) Did an "account stated" arise?
(8) Were you contributorily negligent in failing to discover and correct the leakage before major damage occurred?
(9) Even if there were no contract, is the builder entitled to recover from you on some kind of an implied contract or quasi-contract theory?
(10) What is revealed by any written or oral communications between you while you were trying to get the builder to respond to the damage? Surely some part of this is in writing?
Based on your facts alone, I am inclined to think you should win this case (on a warranty theory), but due to the many issues one can't be too sure, and the presence or absence of mediation, arbitration and attorney-fee clauses in the underlying contract, plus any express warranties, may be controlling. I would look for an attorney with experience in suing builders on a warranty theory.
