Advice on what to do with pool contractor $14000 unexpected charge

[brimorga]

This could go a few ways

1. It could be one big bluff on their part hoping you will just cut them a check, when you call the bluff they just drop it.
2. They could provide the receipts and then it gets tricky.
3. They have no receipts and therefore no proof (benefits you)

The one unfortunate part here is while you have all the monetary leverage, they still have warranty leverage. So if they wanted to tell you to pound sand when there is a problem with the pool that becomes an issue.

I think ignoring it for now may be the right call, this way they quietly finish the pool and start it up. You pay the last bill and then wait for them to contact you about the 14k. Good chance it may take another 7 months, depends on their accounting dept.

Not sure if you ever answered but did you have any security cameras in the yard at the time?

I didn’t have any security cameras in the back. I do have one in the front of the house but it doesn’t cover the street where the dump trucks were, just my driveway. Unfortunately it records on a memory card that writes over when full and 7 months ago would be gone by now anyway.

 

[brimorga]

Even a $14k chipout/refinish would be a even swap. I'd prefer replacing my own pump if it died for SURE. But, yeah. I'm with ya here.

This is what I'm thinking too. The more I think about this, I bet it was the subcontractor who forgot to bill in the first place and this was news to the PB who is just passing it along now. If the PB knew the whole time, it's less likely IMHO that they sat on it. They would have used it as leverage before a previous big step of the process was completed.

It’s a big company and they are super busy, I think they are just behind like they are on everything, but you’re right, it could be the same deal from the sub-con, they are crazy busy also and just behind on billing.

 

[Newdude]

Unfortunately it records on a memory card that writes over when full and 7 months ago would be gone by now anyway

The same probably goes for the dump/landfill site. You just know that they are working out of a disheveled construction trailer in the mud. I'm in the hang tight camp for now. If you end up in front of a judge, express your desire to pay your fair bill, or at least whatever they can prove. For example, That truck # xxxxxx518 was assigned to your house (and yours alone) for 3.5 days and made 35 trips to the landfill. The cost at that time was $X.XX a yard and you owe YYYY. My guess is at least some of that info is scribbled on a napkin somewhere and not exactly properly invoiced.

You do owe them something, make them prove a fair amount when the time comes.

 

[FlapjackMcCoy]

Maybe I am missing something but were there any complications during the the excavation like rock or groundwater?

 

[brimorga]

Maybe I am missing something but were there any complications during the the excavation like rock or groundwater?

The only complication was that the dirt was really hard and they needed to get a different excavator because the one they were using wasn't effective. So that's made it hard for me to remember exactly how long they were here because there was some starting and stopping and some half days. I do know they were here for longer than the 2 days in the contract, and 3.5 days does seem about right, but it's hard to remember 7 months later.

 

[PoolGate]

I would not pay it with the argument that they were not fully working the 2 days they were onsite and had they fully worked those days, they would not have needed the extra days. It is not your problem that they are disorganized. Unless your contract specifically states that they are calendar days with x # of workers working X hours each, I think this would be a valid defense in court.

 

[sktn77a]

Just be prepared for them to put a mechanics lien on your home if you ignore them. Go back to them and ask for complete documentation of the increased costs, as outlined above. While the discussion is going back and forth, they shouldn't be putting a lien on your home. Get an attorney involved if they won't provide the documentation and threaten to take it further.

 

[klanel]

Just be prepared for them to put a mechanics lien

I think in Georgia that the lien must be placed within 90 days of the last work performed. Also, it only last 1 year from the date obtained unless extended later. It may worthwhile for the OP to check on where you live because it could be a non-issue from that standpoint. We purchased a second home that had a mechanics lien and it had expired and was a non issue.

As to the poor estimate, it seems like they should have been closer and waiting this long afterwards is unreasonable. I would not be happy either.

 

[ajw22]

@brimorga is in CA. @Dirk has written about the Consumer Protections in CA and how he has won against pool builders.

Read various threads he posted in…

Search results for query: Court

www.troublefreepool.com

 

[Dirk]

I don't monitor the forum like I used to, but if you PM me with a question I get pinged, and I'll respond. It's my personal mission to help keep contractors honest in whatever capacity I can!! Contractors mis-behave because consumers let them get away with it...

 

[Dirk]

I just did a quick look-see at your thread. I think you have a defense if he comes after you, or liens your property.

It's not unreasonable, at all, for a contractor to have to adjust the contract based on what transpires after the job commences. Unforeseen issues, customer requests, etc. Very common. So common, in fact, that the practice lead to many disputes. So many disputes that CA came up with a nifty solution. The Change Order. This is a document that gets signed by both parties and becomes an amendment to the original contract. The CO describes in detail any changes to the original agreement, crystal clear, in writing, and most importantly includes any necessary adjustments to the contracted price (higher or lower). Without a signed Change Order, a contractor cannot alter the price. Period.

On the off chance that his contract makes it seem like he can alter the price because of additional work required, at his discretion, CA has another nifty solution for that, too. No contract can negate CA law by including a clause that contradicts CA law!

That goes for sub-contractors, too. When the sub determined that he was going to need more time, and/or more dump runs, he should have stopped and issued a change order to the contractor, who would then need to issue his own version of it to you. Neither did that. So technically the contractor didn't have to pay the sub more than their original agreement. If he did, without a Change Order, that's his problem. And even if there was some sort of formal or informal "change order" between those two, your contractor didn't issue the one you were supposed to get. He can't pass on to you any additional charges without a Change Order! And certainly not seven months after the fact. He's counting on you not knowing any of that, and just paying the bill.

Good luck.

 

[Dirk]

Oh, the above also applies to your worry about the extra, small excavation you asked for. Unless the contractor issued a change order for that, too, he can't charge you for that, either. That's not to say you shouldn't pay for that, that's up to your own personal ethics. I'm just saying he can't legally charge for it.

 

[setsailsoon]

A lot of how this will be resolved depends on exactly what is written in your contract. Please take out any personal information and post it if you feel comfortable and I'm sure experts on here can comment. Some contracts refer to "demonstrated costs" . This usually means they require bonafide receipts from their vendors and subs related to the charge. Sometimes there is a specific fee for extras, and sometimes the agreement is silent. $350 per load is extreme but could apply if distance to dump and trucking costs are very high. Many times excavators dump for free at sites that need fill. The only recent reference I have for you is 3 days of mid-size excavator and 25 loads of excavated trees and tree roots cost me a little over $6000.

I think his estimated price for the pool you built is in the ballpark - a little high for my area but California costs are known to be higher.

My advice is to look objectively at the contract language before you get too embroiled in liens, disputes, and maybe even court. Talk to the PB owner directly and see if you can work out something reasonable. Often splitting is a fair resolution. You certainly have a case that the invoice is way beyond reasonable for timing. Whatever you work out make sure to get a full release of liens documentation prior to paying. If you signed something you shouldn't have chalk this up to "expensive education" and get on with enjoying your fabulous pool.

I hope this is helpful.

Chris

 

[sktn77a]

I think in Georgia that the lien must be placed within 90 days of the last work performed. Also, it only last 1 year from the date obtained unless extended later. It may worthwhile for the OP to check on where you live because it could be a non-issue from that standpoint. We purchased a second home that had a mechanics lien and it had expired and was a non issue.

True but the lien can be extended and a foreclosure action can be initiated before it expires. Just be careful.

 

[Dirk]

This seems to be a little grey, both in how it works in real life, and in my fuzzy mind, but my recollection is that you are not able to lien a property (and make it stick) unless you first issue to the property owner a preliminary lien notice. Another CA "solution" that stems, again, from too many disputes arising from lien-happy contractors. Subs were liening properties for non-payment when the owner never even knew that that sub was involved in the project. So CA law stipulates that before a contractor begins work he must issue a Prelim Lien Notice. This allows the property owner to track who has the right to lien his property, so that he can make sure everyone gets paid by the general before the owner makes payments to the general. So part of what the consumer must see to is that before making final payment to the general, he acquires a Lien Release from every sub that submitted a Prelim notice.

The problem with this particular law, like all contractor law, is that most contractors instantly forget/ignore all this stuff once they get out of the contractor's license test room, and never practice most of what they're supposed to do. I'm guessing the excavator didn't even have a written contract with the general, let alone bother to submit prelim's. It's all shoot from the hip, especially with contractors and subs that regularly work together. It works 95% of the time, until it doesn't. Then the general tries to pass stuff like this on to the consumer, because the consumer has no idea these laws exist for his protection. Which also works 95% of the time.

As per @setsailsoon, you can try to negotiate in good faith with the contractor, get an understanding of what the overage was for, how legit it was, what it should have cost, actually cost, compared to the levied charge. And then come to an agreement about payment. That's all good, might be fair, and would definitely be the simplest way out. Plus, if it ends up in court, the judge will like it that you tried. And might, in fact, lean towards using the facts of the negotiation to determine a settlement. But my previous posts, and this one about liens, could be an alternate MO, either for a court case, or for negotiating, in that technically, legally, you're not bound to pay extra, or should be subject to a lien. (Of course, that doesn't mean he won't try to sue, or lien, and you're left cleaning all that up. Settling out of court is usually the best solution for all.) If you make it clear to the contractor and his sub(s) that they have violated several CA laws, and you would not have to pay anything should you end up in court, that might either make him go away, or perhaps soften his stance in any negotiation...

 

[PoolGate]

I had a similar issue with a roofing contractor for my roof replacement under an insurance claim for hail damage. Total bill was around $50k. Roof was a complex job due to me trading some of the insurance work that I didn't care about for other stuff that I wanted like new gutters, skylights, etc. Around 2 years after the roof was done the contractor came back to me telling me I still owed him around $5k. I had various invoices from him for various parts of the job but never an all-inclusive itemized final invoice. I told him I would be happy to pay as long as he provided me with an itemized bill for the entire job, soup to nuts. He dropped the matter.

Have you ever requested a complete itemized bill?

 

[brimorga]

I just did a quick look-see at your thread. I think you have a defense if he comes after you, or liens your property.

It's not unreasonable, at all, for a contractor to have to adjust the contract based on what transpires after the job commences. Unforeseen issues, customer requests, etc. Very common. So common, in fact, that the practice lead to many disputes. So many disputes that CA came up with a nifty solution. The Change Order. This is a document that gets signed by both parties and becomes an amendment to the original contract. The CO describes in detail any changes to the original agreement, crystal clear, in writing, and most importantly includes any necessary adjustments to the contracted price (higher or lower). Without a signed Change Order, a contractor cannot alter the price. Period.

On the off chance that his contract makes it seem like he can alter the price because of additional work required, at his discretion, CA has another nifty solution for that, too. No contract can negate CA law by including a clause that contradicts CA law!

That goes for sub-contractors, too. When the sub determined that he was going to need more time, and/or more dump runs, he should have stopped and issued a change order to the contractor, who would then need to issue his own version of it to you. Neither did that. So technically the contractor didn't have to pay the sub more than their original agreement. If he did, without a Change Order, that's his problem. And even if there was some sort of formal or informal "change order" between those two, your contractor didn't issue the one you were supposed to get. He can't pass on to you any additional charges without a Change Order! And certainly not seven months after the fact. He's counting on you not knowing any of that, and just paying the bill.

Good luck.

Thanks Dirk! Do you happen to know the California statute number that cites these required change order clauses? We found some language around what a change order is, both documented and verbal, but we could not find the specific language you referenced. We want to see how the state law translates into our specific issue, because the contract we signed was pretty clear that they were providing an estimated cost based upon local experience but the final cost would depend on the actual work performed. It's not clear if this is considered extra work or a change order under CA law.

Here is the language from our contract:

Notice About Extra Work and Change Orders

Extra Work and Change Orders become part of the Contract once the order is prepared in writing and signed by the parties prior to the
commencement of any work covered by the new change order. The Change Order must describe the scope of the extra work or change,
the cost to be added or subtracted from the Contract, and the effect the order will have on the schedule of progress payments. You, the
buyer, may not require a Contractor to perform extra or change order work without providing written authorization prior to the
commencement of any work covered by the new change order. Extra work or a change order is not enforceable against a buyer unless
the change order also identifies all of the following in writing prior to the commencement of any work covered by the new change
order: (i) The scope of work encompassed by the order; (ii) The amount to be added or subtracted from the Contract, ( iii ) The effect
the order will make in the progress payments or the completion date. Contractor's failure to comply with the requirements of this
paragraph does not preclude the recovery of compensation for work performed based upon legal or equitable remedies designed to
prevent unjust enrichment.

ADDITIONAL SPECIFICATIONS
Buyer(s) has ____2____ day(s) of excavation included in the base contract price. If the excavation exceeds the contract time allotted, Buyer(s) will be charged $5,500 per full day or $2,750 per half day for any additional time required to complete excavation.

Based on the size of Buyer(s)'s pool/spa project, we estimate the dump fees to be $5,950 based on an estimated 17 load(s) at $350 per load. This is only an estimate and may increase or decrease accordingly. If the total dump fees exceeds the estimated total, Buyer(s) will be responsible for the difference. If the total dollar amount comes in less than estimated, Royal Pools will credit the Buyer(s) the difference.

 

[Dirk]

I don't know the statute number, sorry. This is all recollection from when I was a CA contractor and studied for the test.

That said, your contract includes the very wording I was referencing, so your contractor has two strikes against him: the law and that clause! Nice of him to provide in the contract the very provision he has violated.

The "Additional Spec's" section might be an example of the other point I made: that clause could be interpreted as violating CA law regarding change orders, and so is probably null.

More importantly, IMO, at least the first paragraph of that section doesn't help his case at all. It states what is included in the contract. OK, fine. Then it describes what the charges will be should extra excavation be required. That's a good provision to include, for sure. But it doesn't give him carte blanche to perform any amount of extra work without your consent/knowledge and then later charge you for it! I'm sure that's what he intended when he added that clause, but it doesn't actually state that. That clause in no way eliminates his responsibility to issue a Change Order for the extra work required! This attempt by the contractor's contract to circumvent the very reason a Change Order is required by law doesn't succeed.

If anything, the second paragraph is more of a problem for you, because of the words "Buyer(s) will be responsible for the difference." But there is another CA law that might come into play here (I think this one pertains to all contracts, not just construction contracts): the creator/provider of the contract (in this case, the contractor) has the burden to include text that is not ambiguous or otherwise faulty or confusing (or illegal) in some way. Should the disputed text prove to be unclear, then the other party (you) gets the benefit of the doubt, and can prevail in the dispute just for that reason alone. And I think also that he would be doubly at fault in that regard, because he is the professional, and the seller of the service, you are the consumer. It's on him to make his own contract unassailable. CA is very pro-consumer in these types of matters. So he has a lot going against him regarding these extra charges.

Speaking of being clear, my experience with these laws is based on my years as a CA Contractor, and the studying I did (1) when I took the contractor's test and (2) when I researched CA Law while going after CA Contractors for various reasons. I'm not a lawyer and didn't use any to win my cases. I studied a bit on the 'net and wrote demand letters to the offenders. I prevailed several times in court, but the highest-dollar case I won never made it that far. I involved the CA Contractors License Board and they somehow convinced my pool contractor to pay for my new pebble finish. Point being, I think this is one of your next steps. Go to the Board's website and file a complaint. Start that ball rolling, 'cause it takes a while. You'll explain the problem in the filing, and eventually get assigned an agent. That person will call you to get your side of the story, then call the contractor to get his, and hopefully help you two resolve the issue. This is at no cost to either party, so it is a good first step before court and/or lawyers get involved. Also, that agent should be well versed in the laws I've been referencing, and that person would be the resource for which statute(s) apply, and how they apply.

One thing though, there is a bit of chicken/egg going on here. You haven't actually been damaged yet, I think. You have your pool, you paid the contracted price (I presume), the end. It's not until he sues you or liens your property or dings your credit that you actually have something to resolve. So I'm not crystal clear on what you should or could do at this point, legally, or that you have to do anything at all. You should probably respond to his bill with a letter disputing the charges. State either that you don't have to pay (based on the arguments I've given you), or that you feel the charges are unjustified and that you would like to discuss them before proceeding. The latter is the more reasonable course, especially if you feel that you legit owe something, but not as much as he's claiming...

Either way, I would strongly recommend that you do this all in writing. He'll likely hang himself, they usually do, and when he does you'll want that in a letter, not within a phone call, which invariably turns into a he-said-they-said situation (which judges hate). Be polite, be reasonable. Include absolutely no opinion or emotion in the letter(s). Just state facts, or ask questions (both are legally ambiguous, which keeps you from hanging yourself). Maybe save the legal threats for the second letter. @PoolGate has made a great suggestion. In the first letter, question the amount and ask for a complete itemization of the charges. Perhaps include a request for invoices from subs, and/or their contracts and change orders, etc. Make him work for it...

 

[Dirk]

I can't find a statute either, so I may have mis-remembered that. My apologies if that turns out to be the case. But unfortunately for your contractor, he included the Change Order clause so unless that clause is proven to be invalid (it's not, IMO), then you're golden. Specifically:

"Extra work or a change order is not enforceable against a buyer unless
the change order also identifies all of the following in writing prior to the commencement of any work covered by the new change
order..."

So, clearly:

1. Adding days of excavation is a change [order] to the contract: "Buyer(s) has ____2____ day(s) of excavation included..."

2. There was no change order in writing, so:

3. The extra work was not described "prior to the commencement of any work..."

4. The cost to be added was not described "prior to the commencement of any work..."

5. Etc (a think there are a few other conditions he violated)

As per his own contract, the "Extra work ... is not enforceable" which I believe translates to "charges for it cannot be collected."

So whether a statute requiring changes orders exists or not, his contract does require them, and they must be in writing...

IMO...

So 2¢ + 2¢ + 2¢ + 2¢ + 2¢ + 2¢ = 12¢ minus 2¢ for the bit about the statute and you still owe me a dime.

 

[Dirk]

Now if the contractor and you had an oral conversation regarding any extra excavation that would be needed, and you said anything like "OK, go ahead," then you're on the hook. Apparently, under certain circumstances, even a casual conversation about a change can negate written provisions in the contract, if the following is taken at face value (it's based on the notion that if you orally consented to extra work, and then he performed the extra work, then he can charge for it, regardless of the clause in his contract):

Five Situations Where You May Be Able To Avoid A Contractually Mandated Written Change Order | Last, Faoro & Whitehorn A Professional Law Corporation

Five Situations Where You May Be Able To Avoid A Contractually Mandated Written Change Order Five Situations Where You May Be Able To Avoid A Contractually Mandated Written Change Order By William C Last, Jr. Almost all written construction contracts require that the contractor obtain a written...

www.lhfconstructlaw.com

If there was no such conversation, but he says there was, then you'll need a judge to determine who's telling the truth...

OK, we're back up to 12¢...