The contractor did not fully fulfill the work that we discussed. He did not obtained the required permit initially to perform the work. The specifics on the contract do not reflect what we had discussed. He said he did not know he needed a permit. He said he did not know that the finished product is not what I wanted. I have not yet paid him in full yet due to this disagreement. He will fix the issue at an added cost. He said he will put a lien on my house if he is not paid by Wednesday.
What can I do? What are my rights? Do I have a case against him?
I don't practice in your state. When a contractor fails to get a required permit his lien power would seem to be weakened. Frivolous liens can be removed and are the property owners usually awarded attorney's fees. So can he put a lien on yes, should he no. If he does take everything to a local lawyer at once.
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1. In your contract, or in a separate notice given to you before work begins, the statute requires the contractor to give you a very specific notice about his right to file a lien for nonpayment. It must say:
NOTICE TO OWNER
FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC'S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429 RSMo. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR "LIEN WAIVERS" FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.
Further, if your property qualifies, he must get you to sign the following form:
CONSENT OF OWNER
(For owner-occupied residential property of four units or less)
CONSENT IS HEREBY GIVEN FOR FILING OF MECHANIC'S LIENS BY ANY PERSON WHO SUPPLIES MATERIALS OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT ON THE PROPERTY ON WHICH IT IS LOCATED IF THEY ARE NOT PAID.
If that notice is not on the contract or he did not give it to you separately, AND you did not sign the Consent form (both), then he has NO lien rights. If he then files a lien you have an excellent claim against him for slander of title and his lien is absolutely not enforceable. If you do not have that notice, do not read further. Otherwise, if you do, then:
2. The contractor has 180 days from the last day of work to file the lien.
3. If he was a subcontractor of someone you hired, then he must serve you with 10 days written notice before he can file the lien.
4. The lien has no magic. To enforce it, the contractor must file suit within 180 days after the lien itself if filed. If not suit within that 180 days, the lien goes away.
5. If he meets all these deadlines, he still has to prove the job was done in a workmanlike manner in accordance with the instructions and that his rates were reasonable.
You didnt mention the amount involved. Typically the cost of 1-4 above may range from $5,000-$15,000 depending on the fight involved. This raises the practical issue of whether the contractor will pursue enforcing the lien even if he files it.
hope this helps
This comment does not create an attorney-client relationship. The law and its application by the courts is constantly evolving and changing. This discussion is not to be taken as a definitive guide, and should not be relied upon to determine all fact situations. Each set of facts must be examined separately with the current case and statutory law analyzed and applied accordingly.
Construction / Development Lawyer
Mr. Komen has given you a very detailed discourse on the pertinent law in your state. I can only add a caution that asking questions on Avvo will not be sufficient to make decisions like whether you "have a case" against your contractor. That requires an interactive discussion with an attorney you hire who acquires a much more in-depth understanding of your situation. Good Luck.