Expert: Roger Zona - 8/3/2009

Question
MY COMPANY DID WORK FOR A CLIENT, IN NAPLES FL. WE RECEIVED DEPOSITS FROM THE HOME OWNER , BUT HAD A CONTRACT WITH THE CONSTRUCTION COMPANY BUILDING HIS HOUSE. AFTER WE FINISHED THE PROJECT(GRANITE AND MARBLE COUNTERTOPS) THE REMAINDER(BALANCE DUE WAS $6748.00) WE SENT THAT INVOICE ON JUNE 30.
WE WERE SUPPOSED TO GET PAID RIGHT AWAY.
THE BUILDER IS NOT PAYING BECAUSE HE DOES WHAT THE HOMEOWNER IS TELLING HIM.
WE CANNOT TAKE THEM TO SMALL CLAIMS BECAUSE THE BALANCE IS OVER $5K.
WE NEVER SENT NOTICE TO OWNER,
45 DAYS HAVE PASSED
WHAT CAN WE DO?
THANKS.

Answer
Hello Peter,

You failed to do what so many subcontractors fail to do - send a notice.  There are service companies that do N.T.O.'s routinely or you can do it yourself.  The form is standard and can be put on your computer, fill in the blanks and be mailed or hand delivered.  As a G.C. I go so far as to remind my subs to send their Notice.  It's such a simple task and can save you lots of money!

I don't mean to lecture you.

I would send a notice right now regardless.  Send it to the contractor and a copy to the Owner.  If the owner thinks he may end up paying twice, he may make it right with you and the contractor.  As for small claims court, if that's your only remaining course of action (even if your limit is only  $5,000) file a claim for that amount claiming the actual cost of materials and the balance in labor.  $5K is better than a $6,748 loss!  

Generally there is a reason why subs are not getting paid.  If the G.C. is a friend, he should go to bat for you.  If not - I'd call him and the owner every day with a pleasant but demanding request for payment.  Sometimes a volunteered discount (2%) will motivate the G.C.  What have you got to lose?   

If the house is still under construction, you might create a stir by showing up on the job with the intention of removing the counter-tops.  Technically, when the material is installed it is considered a permanent part of the building and therefore can't be removed without permission.  Sometimes this ruse works.  I've also known contractors who called the police when a sub tries to remove his work.  

I wish I had better advice for you.  You should read up on the lien laws for your own protection.
I'm required to take a continuing education course every two years and it must include lien law.

Roger