Expert: Roger Zona - 3/23/2009

Question
Sir,
I am the president of a small (12 unit)Condo, which is 40 years old.

I had a discussion about repalcing a pool pump motor, and and an 12 x 12 exhaust fan in the wall with a licensed electrician. I told him I would need an estimate, and I expected to be presented with a contract.

A couple of days later I arrived late in the day to see four young men who appeared to be teenaagers working in and around the small pool pump room. They said that they worked for the electrician. I asked where our old motor was, they said the electrician had taken it. I called him and he said it was too late to get it back.

Subsequently he billed us for $3,000.00,, charging us per person, per hour. Another electrician said the work for the parts and labor should have been about $750.00, and easily accomplished by one competant electrician in abbout 5-6 hours, including about 8 feet of liquid tight wiring.

We refused to pay the demanded $3,000.00, he filed a lien we offered to pay $1,200.00 just to settle the matter. His attorney filed a law suit, claiming that the Statute of Frauds is not relevent because he had done work for a previous president without a contract.

I though we would be able to handle the mater in Small Claims Court, but the case was filed in County Court, because, as I was told, there is a foreclosure involved, as such, it cannot be heard in Small Claims Court. Is that correct?

Also the electrician failed to obtain a construction  permit from the town. I was told by the electrician that if this issue were brought up with the town, we as the owners would be subject to a large fine, not him.
We are caught between a rock and a hard place. Is a construction lien valid or can it be dismissed because no permit was applied for?

Thank you for your assistance.

Answer
Dear Joe,

Apparently you did a couple of "no-no's"!

1st you should have asked for and the contractor should have given you a copy of his license and a certificate of insurance including general liability and particularly Worker's Compensation.  And, does the W.C. include the names of the four young men working at your site?  You should still ask for these two documents immediately.  When you receive the certificate, call the issuing insurance agent to verify that the certificate is current and valid.

2nd you should have checked with your governing agency (city, county, state, etc) to verify that this contractor has a valid license.  Also, you can search records on line to see if his company is active, current and valid.  Not too late.  Get all the information you can.

3rd get a letter from the governing agency stating that the contractor did not apply for a permit.  Further, ask the Bldg Dept. to check the work he has done to see if it is proper and to code.  It's true, the Condo is responsible for making sure that a permit is applied for - but - usually the penalty when a permit is applied for late is 2 or 3 times the original cost.  Incidently, do you have a witness to his conversation?  That would help.

Not being a lawyer, I can only relate to you my experiences.  A lien is a claim that must be proven.  Even if his lien is valid, the court will issue a judgement against your condominium association which must be pursued further in court for collection.  He will spend much more than $3,000 to pursue a judgement.  Also the Condo will have to hire a lawyer to defend the judgement.  You don't have to defend the lien if you agree to the judgement.  Unfortunately, the courts usually favor the "poor contractor" - but if the lien was filed fraudulently, you can have it dismissed.

You also have the option of reporting the contractor to your State  or County or City - whoever provided a license - and you can file a complaint for poor workmanship, endangering the health and welfare of condo owners, operating without a permit, failure to be properly insured, license previously revoked, and on and on -  any number of other reasons why this contractor has perpetrated a fraud upon the Condo.  I personally don't think his attorney's claim is valid.  Previous work doesn't apply and the contractor, if he has worked for Condo's previously, knows that all matters must be approved by the board, etc.

There are law firms that specialize in Condo law.  You may be protected by some portion of the Condo Acts in your state.  I am in Florida and the Condo laws here are very rigid.

I hope this was helpful.

Roger