Should I Sue My Builder?

You should consult with a board certified construction attorney who specializes in these type of construction cases. He or she will familiarize you with the provisions of Florida Statute 558 which requires you to give the contractor notice of the defects and an opportunity to cure. You may also have an insurance policy involved or perhaps a warranty on the home which may provide you with certain recourse.

Any case evaluation will require a good clear construction contract. If you hired an attorney to draft the contract, this is the drafter’s chance to shine or your chance to wish you had hired a good construction attorney. Your contract should spell out the understanding and intentions of the parties regarding the items you are complaining about.

When you visit your attorney there will be at least three fundamental questions as part of deciding whether it's worthwhile to bring a lawsuit to court:

• Do I have a good case?
• Am I comfortable with the idea of a compromise settlement or going to mediation?
• Assuming a lawsuit is my best or only option, can I collect if I win?

If the answer to any of these questions is no, you may not won't want to sue.

Let’s break these three questions down:

Do I Have a Good Case?

A lawsuit against your contractor for doing substandard construction may include among other items a suit for breach of contract. As you explained the contractor agreed either orally or in writing to do the job properly, and use the correct materials. The legal elements for this type of lawsuit are as follows:

Contract formation. You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is fairly easy to prove. Without a written contract, you will have to show that you had an enforceable oral contract, or that an enforceable contract can be implied from the circumstances of your situation.

Performance. You must prove that you did what was required of you under the terms of the contract. Assuming you have made agreed on payments and otherwise cooperated, you should have no problem with this element.
Breach. You must show that the party you plan to sue failed to meet required contractual obligations. You'll need to prove that the contractor failed to do agreed work or did work of unacceptably poor quality or the materials provided were not what was specified.

Damages. You must show that you suffered an economic loss as a result of the other party's breach of contract. Assuming the work must be redone or finished, this element should also be relatively straightforward to prove.

Regarding the likelihood of being made whole, I urge you to be realistic. Does the contractor have the financial resources to pay a judgment? Lawsuits are unpredictable. Even if your own attorney is prudent about expenses, he or she has no control about how the other side conducts themselves. Opposing counsel and/or parties can make life miserable and drive up costs. That's just the way it is. While it sounds like you should prevail in a lawsuit, there is no guarantee that a judgment will be paid. If your contractor is broke you may learn about Florida Homeowners' Construction Recovery Fund. It is a fund of last resort that is available to a natural person who has suffered monetary damages by the financial mismanagement or misconduct of a contractor, and who has exhausted all other resources of payment. The Construction Industry Licensing Board makes the determination of eligibility for an award.

Many of the residential disputes that I see occur because parties have unrealistic expectations. There are some people who simply expect perfection, and that just does not occur. Remember, you should try to resolve your disputes. Settlements you consent to are frequently better than what a Judge or jury may award. Statistics have shown that people tend to comply more with settlements than judgments. Most importantly, a settlement is something that you have control over.

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