What to do when you get ‘screwed’ by a boat repair contractor?

[ka4wja]

Ms Shrew,
As I wrote earlier (and as clearly listed in my profile) I'm from Florida....and I'm not an attorney...
But, when someone commits a criminal act (fraud, etc.), of course a police report can be made....but here in Florida you can swear out a criminal complaint to the States Attorney Office, too.

Originally Posted by Shrew

What jrbogie is describing is CRIMINAL Charges. What you are describing are CIVIL charges. A Civilian can report a criminal act, however, a civilian cannot bring about criminal charges. Police arrest for criminal acts and a DA files a criminal complaint with the court. The police don't file the criminal complaint with the court, they only charge and arrest.

What jurisdiction are YOU from?

In all my years, I've never heard of a States Attorney handling "civil" charges, only "criminal" charges....
(unless of course you were fling a civil suit against the State or other gov't agency)....

I think if you read what I wrote, I was pretty clear...

Mr boggie,
I'm not sure where you are from, and/or what jurisdictions you're referring to in these statements??
But...

But, here in Florida we have significant enforcement and fairly good prosecution of "hurricane repair fraud"....
{my neighbor had such an issue and all it took was him swearing out the criminal complaint at the State Attorneys' Office....they filed criminal charges against the guy....he pled to a misdemeanor and paid full restitution...took a couple months, but it got done!}

Perhaps you have different Florida experiences that you can relate??


Here is what I wrote earlier:

Fair winds..

John

Is this not clear??
If Cynthia is the victim of a crime (fraud?), then she has the right to report such crime and swear out a criminal complaint, to the States Attorneys' Office, against the individual that committed the crime...of course calling the police and having detectives investigate matters is the usual course of action, but if Cynthia is in New Hampshire (as her profile says), that will be problematic....(although her local police department should be able to help with questions??)

Nowhere have I mentioned bringing a civil suit against him, because others had already mentioned this in earlier posts...as well as they've mentioned the probably futility of doing so...
This is why I specifically mentioned the option of swearing out a criminal complaint...


Again, I'm not an attorney....and I'm loathe to give any quasi-legal advice....but, I am aware of the strident stance the local prosecutors take against hurricane repair fraud here in Florida....and wanted to point this out...

Fyi, I've had minor crimes committed against me here in Florida and swore out my complaint to the States Attorney....and, as I wrote above, one of my neighbors had hurricane repair fraud committed against him and he swore out complaint, they found the guy, that guy ended up pleading to a misdemeanor, and made full restitution....
There was no civil case filed...

So, I do hope I've been more clear now??

Fair winds..

John

[LaughingWarrior]

After reading all the comments here, I have a few thoughts to share from a 20+ year construction contractor, homebuilder and professional carpenter.

As to recourse, this is a civil matter in my opinion. (This would certainly be the opinion of law enforcement and the Crown Prosecutor's office here; I defer to differences in jurisprudence in the US however.)

For the act to have been criminal, you'd have to prove that the contractor had no intention of completing the work, or acted in bad faith at the beginning of the job/time of execution of the contract. I don't believe you'd win that argument, as work was performed. Shoddy work is unfortunately not criminal.

If I were in your position, I would pursue in small claims court, unless the sum exceeds the small claims limit in that jurisdiction (in Alberta the limit is $50K, beyond which you would need to proceed via a higher court). These types of cases are tried in small claims courts all over the world, every day.

As to the process of hiring and contracting an individual or company to do this kind of work: of course performing due diligence to the best of your ability is crucial. Asking the bidding contractor for references and asking local suppliers etc. questions about the reputation of said contractor will often point clearly in the direction of a good choice.

In my business, which has covered everything from small jobs of a couple thousand dollars value, up to new custom home construction in the $800's+, there are certain steps taken to protect both client and contractor, and all steps are clearly outlined and agreed upon in advance.

The bid and subsequent contract will define the scope of work in specific terms, including type and style of materials used, methods of construction, etc.

There will also be a schedule of specific exclusions; things which are expressly NOT included in the bid price and scope.

The time-to-complete or delivery schedule for work will also be defined. There will certainly be clauses included to allow for an adjustment to the schedule for any number of reasons; these may include weather, availability of materials, acts of God, etc. For example, about 12 years ago here in Alberta, one of the major facilities that supplies cement to the concrete industry went down for a significant overhaul; concrete was in short supply for months, affecting construction projects drastically. This was completely out of the control of builders/contractors, and delivery dates for all kinds of projects had to be ammended.

The schedule for payment of work will define at which stages of completed work the client is required to make a payment. (This would not apply to short-scope jobs (I'm not going to start a job on Monday, expect a progress payment on Wednesday, and close out the job on Friday afternoon), but can be any schedule the client and contractor agree upon in advance.) This will outline milestones in the project when the client will review the work-to-date with the contractor, and pay the progress payment due. The values of these are totally dependent on the scope of work and schedule.

Typically, a deposit WILL be required. It is usually 10% of the value of the bid, and due upon signing of the contract. A contract involving payments requires a financial interest by both parties in order to be binding. Some might argue that a deposit of $1 secures financial interest, and this argument is technically correct, however... a reasonable deposit of 10% assures the contractor that the client is acting in good faith, and likely has the means and intent to pay for the work. A deposit of this nature should not be seen as a red flag, and in fact is more likely if dealing with a reputable contractor than not.

In many jurisdictions, a company or individual who receives deposits prior to commencement of work must be registered with the province/state, or possibly even required to carry a bond specifically for this purpose. On jobs of very large scope (typically $1M+), the client may require the contractor to secure a performance bond specific to that project only. (This is getting into rarified territory probably not relevant here.)

Some items may require an ADDITIONAL deposit. High value, custom made items (in my case, a full set of kitchen & bath cabinets for a house, which might range from $10K to $75K, for example) may require a deposit of 25-50% of the value of that component, payable on client approval of design/materials, and placement of order to the supplier. This again will be detailed in the bid and contract, in advance.

Any terms of warranty of materials and workmanship will also be clearly outlined; there may be local/state/provincial/federal legislation which covers this in some regard. There may be several levels of warranty coverage to protect you (for example, if I installed a door in your home, I would warrant my workmanship and basic materials for 1 year, however the door itself may carry a 5 year warranty from the manufacturer as well, and the latch & lockset perhaps 2 years from that manufacturer, etc.).

Holdbacks: the final piece of the puzzle is a standard (in my industry) holdback, usually 10%, kept by the client until ALL work is completed satisfactorily by the contractor. In practice, the holdback is applied at each progress draw; if you owe $10K at a progress draw, you actually pay $9K, reserving the last 10% to be released at the end.

There are avenues to protect the client in case of poor work, subsequent failure of the work, etc. This may be a provincial/state Consumer Protection branch, or in my case additionally the New Home Warranty program, etc., before finally resorting to civil court if needed.

There are avenues to protect the contractor as well, including a formal work stoppage pending payment of progress monies due, various Lien Acts allowing the contractor to place a Lien on the title of the house/car/object being worked on in case of non-payment, and again, via the courts.

I hope this helps shed some light on the process; I recognize that most people don't engage in this type of transaction regularly, and it can be overwhelming for some. While the above is relevant to residential and commercial construction work, all the same principles can apply to any work you are contracting with an individual or company to perform for you, on a boat or elsewhere. The basic process of fixing your boat is not really different than renovating your kitchen.

[Scott Berg]

Originally Posted by hamburking

The reputable contractors I have hired have never asked for any money up front, other than a small deposit.

The bad contractors I have hired always ask for partial payment for materials, whatever, up front. Their goal is not to do a good job, but to separate you from your money.

Hmm; we usually ask for 100% of materials upfront but have the delivered to the boat so the owner knows where the money went. We then work in agreed deliverable tranches based upon the size of the job. It is reasonable to ask for parts in advance (so long as the money is really going to parts and not the last job). Just our way of doing business, YMMV

SB

[ka4wja]

LaughingWarrior makes an excellent point here!!

Originally Posted by LaughingWarrior

For the act to have been criminal, you'd have to prove that the contractor had no intention of completing the work, or acted in bad faith at the beginning of the job/time of execution of the contract. I don't believe you'd win that argument, as work was performed. Shoddy work is unfortunately not criminal.

And, here in Florida they do criminally prosecute hurricane repair fraud....but, of course (as LaughingWarrior points out) shoddy work, or incompetent workers, etc. is not criminal...
So, in the cases that I'm aware of it was of course clear fraud....no work ever performed....and usually no work was ever intended to be performed...

I have no idea if this is the situation in Cynthia's case??
As I re-read what she wrote, its likely not...
I suppose it's likely just lazy / incompetent workers?? And then someone too embarrassed to admit they're in over their head, and they just walked away???

But...
But, if this was fraud....the local Florida States Attorneys' Office will take your complaint and file criminal charges....they're pretty serious about this here...


Fair winds and good luck.

John

[Cheechako]

What many don't realize is that legal recourse may get you nothing. Small claims or not. There is often no method to get paid even when judgement is rendered.

Long complicted contracts are great for major construction, but any marine professional who sees that will just bid high, or shy away completely from a job with a multipage timeline contract, there is too much work out there and not enough good people to do it already.

These things are almost always viewed as a civil matter not fraud unless there are multi repeated offenses. A contractor here in WA state several years ago stole millions. Then moved on to Montana to do the same thing. Eventually they got him and prosecuted but it was years. For $50k it aint going no where, much less $10k. There is no room in jails, even felons are released without bail every day due to no room.

[LaughingWarrior]

Originally Posted by Cheechako

What many don't realize is that legal recourse may get you nothing. Small claims or not. There is often no method to get paid even when judgement is rendered.

Long complicted contracts are great for major construction, but any marine professional who sees that will just bid high, or shy away completely from a job with a multipage timeline contract, there is too much work out there and not enough good people to do it already.

You're unfortunately correct about the first part; even with a judgement in favour and an enforcement order, if the contractor doesn't have the cash or assets to satisfy the judgement, the client is likely SOL.

As to the second part, I think you have it backwards, at least relative to my comments. It's the contractor who should be presenting the client with the bid and contract documents, not the other way 'round. For simple jobs, the documents needn't be lengthy or complex, but it's been my experience that my detailed, thorough bids win work over competitors who give only a basic quote; they show the prospective client that I know my business, and care about their security and satisfaction.

I'd favour a contractor who convinced me of the same. It's unlikely that a contractor who took the time to show me that they thoroughly understand the job will flake out on the work.