A tradesperson does more work than what is on the contract and is asking to be paid for it

Question

I have a fixed price contract that has a long list of tasks to be performed but is somewhat vague on the details. The contractor said a number of times "well we could do this" and the this was not on the list. No mention was made of additional payment for it.

My typical response was "are you sure about that - there's already a lot to do". In some cases I just said "yes that sounds good".

The contractor has become surly because the amount of time being spent is well greater than the amount he had anticipated. (Note: I have not "held" him to the contract - if he wants to leave he can).

He has now come forward saying he will put a lien on the house for items that are not in the original list. Will he win a judgment on this?

My problems with this:

• he came to me saying he would give me a bargain price.
• I was not even planning to do many parts of the work: he offered to do them at a low total price and I accepted
• I would not likely have agreed to the "extra" things if I had known there would be additional charges
• In any case I would most certainly not agree to the kinds of prices that he is now presenting: I could get lower prices from other tradespersons.
• Even given all that I would not likely have agreed to have the additional work done before the items on the original list were completed

If I were to have these additional work items done then I have been denied the opportunity to do a bidding/negotation/ terms / agreement cycle.

I never signed anything to pay a dime over the contract amount, or even verbally agreed to additional costs. Instead I frequently harped on my limited expenses ability and the fact that labor and materials were well over the estimates.

My take on this is his claim will not fly - there is no definitive evidence that I approved additional compensation for the additional items he did. At worst case the additional items would be costed out on a similar basis to the items in the original list. That amount of money I can handle- it is an order of magnitude less than the costs he is trying to impose now.

Having said all that - having a lien on the home is a real headache. My question would be along the lines of: would I be likely correct in the following

• most likely no judgement since lacking an indicator that I were expected to pay more
• if a judgment were allowed its magnitude should be aligned with the pricing of the original contract - not market rate
• having a lien filed will in any case be a long arduous headache of a process to deal with even though the claim would have limited or little merit

Update Apparently there is some chance a contractor might be able to get market rate for additional work even though the existing work was at a much lower rate. That is concerning. So here is more info.

There were numerous discussions that my finances were constrained, that he was providing a cut-rate service to help out, and that i needed to control any additional expenses. We came to a conclusion some time in that any new work would require a change order. He agreed in a text message and verbally that I had met any existing payments by virtue of retroactively reimbursing some fuel costs. He is now reneging on that as well as the spirit of the deal.

Epilogue

I made a settlement with this huckster. I would have likely won on merits against a lien - but the amount of the settlement was low enough to justify expediting the whole thing. It is a matter of having trusted too much and trusting the wrong person. There is a big cost associated with that class of mistakes.

Now the day after a very explicit "final" settlement - in which there is specific verbage that no further charges can be levied - this guy insists on adding a surcharge to materials that were already paid for or he won't deliver them. I just denied denied denied. "No more addition charges". The point here is: this is a guy just out to get as much as he can. Justice is NOT being served: just be careful to detect these folks before doing business with them!

Answer 1

My question would be along the lines of: would I be likely correct in the following

most likely no judgement since lacking an indicator that I were expected to pay more

This might happen but the outcome would be very uncertain.

A contractor is entitled to be paid the contract rate for work within the scope of the contract, and also a contract rate (if stated) or the fair market value of the services rendered (if not stated) for work subsequently authorized by the property owner and work done with a mutual expectation that the contractor would be paid for it even if not expressly authorized by the property owner.

The legal theory for payment when work is done without express authorization, but with a mutual expectation that the contractor will be paid is called "unjust enrichment", "quantum meruit", or an implied in fact contract.

The existence of authorization would not generally have to be in writing, and a provision requiring additional work authorization to be in writing in the contract is not necessarily legally enforceable in all U.S. jurisdictions (e.g. it would be void in Colorado).

There is likely to be disputed evidence concerning what was said and what the parties understood what was actually said to mean. This could easily go either way in litigation. To be clear, it isn't a clear slam dunk win for the contractor either. But neither side's arguments would be considered frivolous or groundless in the face of this kind of fact pattern as it is typically litigated by reasonably competent counsel.

You would be particularly disadvantages by the fact that you would have had the ability to inspect the work being done and to have immediately ordered the contractor to stop doing additional work that wasn't authorized if you saw that the contractor had started to do that additional work. Failure to immediately object to the additional work being done without authorization could be viewed by a judge as a form of implied consent to the work.

if a judgment were allowed its magnitude should be aligned with the pricing of the original contract - not market rate

If the original contract was a fixed price contract and the original contract did not provide for another rate for additional work done beyond the original scope of the contract, the amount owed would be based upon the fair market rate, not the discounted fixed price rate.

Construction contracts that are well drafted by lawyers usually contain a provision governing the rate of pay that is due in cases where there is an agreement, express or implied, to do additional work, and also try to clarify what process must be taken to approve additional work (although the process provisions don't always hold up well in court).

Of course, fair market rate is something subject to reasonable disagreements and the fixed price for the original contract would be one piece of evidence among many that the fair market value rate for this particular contractor was lower than the average fair market value rate for all contractors doing work of this kind in this market (e.g. perhaps your contractor has less experience than average or lacks a particular kind of relevant training).

having a lien filed will in any case be a long arduous headache of a process to deal with even though the claim would have limited or little merit

Yes, it would be, and your evaluation of the claims as having little merit probably significantly understates your risk of liability.

Even if the contractor does not ultimately prevail on the claim for the additional work, it is unlikely that the contractor would face any sanction for not doing so, and unless the contract has a broad enough provision to shift attorney fees in this dispute over additional charges as opposed to the original scope of the fixed fee contract work, each side would bear their own attorney fees in the litigation over the lien for the additional work.

It is unlikely that a court would impose a groundless/frivolous litigation sanction upon the contractor or damages for slander of title in this fact pattern.

For example, a settlement agreeing to pay for the additional work at a discounted rate commensurate with the rate implied by the fixed fee part of the contract would probably be preferable to having the house subjected to a lien and then litigating the case on the merits.