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Question DetailsAsked on 4/22/2017

In California can a contractor invoice more than what is in the written contract?

I contracted a licensed GC in California. He was presented with a complete bid proposal from the architect for a remodel of my condominium. He was advised that the HOA had a limit of 4 months to do the work. He took 9 months and then abandoned the work with multiple problems of shoddy workmanship. I paid him the exact amount of the contract plus the 4 change orders that there were. He has invoiced me for 40% more than the contract plus change orders with no justification other than he says I owe him that and has placed a lien against my property.
This does not seem right to me. I always thought that a contract was binding for both parties.
Can anybody give me any advise?

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Voted Best Answer

Yes a contract is binding on both parties - but is also subject to modification, WITH concurrence by all parties to the contract.

Below is a document from the State of California on what a home construction/improvement contract should/must include in Califonria, from the contractor licensing website. It appears to be partly guidance, though there are several sections which is says are mandatory (see the bold items) - so if some of the mandatory disclosures were not in your contract, like the change order and lien ones, you might have an out there.

Basically, he can probably invoice whatever he wants - particularly since he is including change order(s) with it to presumably cover the overage. Invoicing it does not mean he gets it, however.

The key factor is that a change order is not a legal document and has no legal effect until BOTH parties to the contract sign and date it (and the effective date, barring any specifically stated variance, would be the last-signed date if different signing dates) - so that is, along with his invoice for overage payment, merely a request or mnodified proposal at this point. You do not have to accept it, or can negotiate to some middle ground - especially since these evidently do not relate to things YOU asked for or previously verbally approved, so if there was no legitimate change in the scope of work involved, provided the contract was based on a firm price (rather than a stated estimate), then there would apparently beno basis for him to ask for more $.

If you had a firm scope contract (including the effect of the four approved change orders) and especially since you say his workmanship was shoddy and incomplete, then you made a real mistake paying the full amount before the work was done to your satisfaction - but I probably did not have to tell you that, at least in retrospect. However, your recourses, though you probably need an attorney experienced in residential construction disputes ASAP since he has evidently already filed a lien, are:

1) file a complaint with the state regarding this - puts his license at risk, and he may back down under the pressure - this and filing a complaint with the agency issuing his business license (state and in California commonly city or county too) will put pressure on him and show you are serious - but you need to check (with you attorney) any mandatory stand-still period during such a complaint - some states prevent you from suing or going after his bond while they are investigating, which you DEFINITELY do not want to happen.

2) file a claim with his bonding company to get the work finished to the contract specs/drawings/scope and with "workmanlike" finished product at the full contractual amount you have evidently already paid - this can go well if the scope was well defined, not so well if based on an estimate or indeterminate scope of work.

3) sue him for violation of state law by filing a lien if he did not timely give you any required state pre-notice. And for the value of the uncompleted work - though having paid him the full amount leaves him the opening that you accepted his work by that payment so it is too late for you to complain about quality. NOtae you may be looking at further liens from subcontractors and/or vendors too if he has not paid them off fully, which is unlikely if he is looking for 40% more $.

4) sue him for breach of contract in not completing the work (niether on time nor at all), unworkmanlike product, and overcharging. Again, as soon as poor product or late completion came into the picture would have been the time to take proactive steps, not 5 or more months later - but you certainly have a case, just not a slam-dunk one, I would say. Hence - especially since a lien filing can cause immediate credit rating damage to you and sometimes result in acceleration of ANY loans you have out there (mortgage, car loan, student loan, personal loans, credit cards, etc) you need to take preactive steps to get the lien removed or at least put in abeyance.

5) You say the GC "was presented with a complete bid propsoal from the architect". Your attorney needs to look at whether the architect is part of the picture here - normally would not be, but if the architect presented the GC's bid as part of a package deal, or told you this was the GC to go with without getting other bids, then maybe so - which might make the architect a party to the action too, either as your agent or potentially (if he presented only that one contractor as part of a package deal) for acting as a general contractor himself.

6) Ditto if architect had any inspection/supervisory responsibilities under the contract, because if he was acting as inspector or project manager (which is not uncommon) then he would likely have had responsibility to bring the late completion and substandard work to both your and the GC's attention and taken steps to get it cleared up and completed. Architects commonly carry a million or more $ (commonly $5-10 million for larger Archiect/Engineering firms) in E&O (Errors and Omissions) insurance PLUS business operations liability insurance, so if he is potentially partly responsible would commonly be brought into the case as a defendant as well.

Here is a link to a similar question with several responses FYI too -

Answered 3 years ago by LCD

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