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Brian Howard Deitch

Brian Deitch’s Answers

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  • We hired a contractor for my small business he gave us 2 wk deadline but never happened he said 2 more weeks but no progress?

    Then after 4 weeks he asked us for the final check in order to complete the job. The job he did so far was only 40% completed we refuse to pay him final bill. Ask him to complete the job first then we will pay you once it's done. He said he won't ...

    Brian’s Answer

    Your question raises many issues. Most of them are dependent upon the terms of your written contract. If you do not have a written contract, you can dispute his claims, but that does little to provide you with an immediate remedy.

    The two week deadline is dependent upon what you agreed to or the terms of the written contract. Often times, acts of God (weather) or delays in material supplies can extend the time period.

    Regarding payment, the terms should be stated in your contract and will govern your situation. Typically, the contract will require payment upon draw requests for costs incurred, less a ten percent retainage. In plain English, this means that you do not issue payment until he lists the costs actually incurred. Additionally, the law provides that you retain ten percent of any payment until after completion. Again, you need to look at the particular contract you have with this individual contractor, or hire an attorney.

    Texas has a variety of liens available to contractors and subcontractors. Original contractors have a constitutional lien is "self-enacting", and arises merely from the claimant's performance of the work. Original contractors also have a statutory lien. No notice is required except for when the Affidavit is filed. His right to file a statutory lien is again dependent upon the terms of your contract and whether you have a termination right, or if additional sums are due.

    Beware also that if you have a commercial lease (for the premises of your business), often the filing of a lien against the property will constitute an event of default under the lease. While he cannot legally file a lien against the Premises if you are merely a tenant, he can file a lien against your leasehold. However, there are variances on this that may be governed and addressed by your lease and the terms of your landlord-tenant relationship.

    Again, I would recommend you contact an attorney. Lien law, though intended to be simple, can often times be very confusing, and is extremely fact dependent.

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