If you want the contractor to write the contract by all means ask to see the basic contract form up front.

The contract a builder uses will tell you a lot about how he does business.

Hope for the best and plan for the worst.

While our builder had an outstanding reputation, there were a number of SNAFUs on our job and without exaggeration, our contract saved us at least 50k in potential overages and/or grey areas. Please don't be shy about protecting yourself- some builders will try to embarrass or bully you into not looking over the fine print. I think you'll also find that negotiations over contract changes will mirror other negotiations that will inevitably crop up during the job and it's always nice to know early what you're dealing with, good or bad :)

We signed the contract almost 90 days ago. They have started framing now. Everything is going fine. But I feel so strongly that the initial time, energy, and money spent was worthwhile in nailing down that contract. I refer to it often! I keep a bound copy in my little "construction bag" that goes everywhere with me now!

We interviewed 5 contractors before signing with ours. We only saw the contracts of 2 different contractors, but I wouldn't feel bad about asking for it on initial meetings as well. It also speaks for their professionalism.

Good luck!

The AIA forms tend to offer additional protection to the owner and include architectural oversight but it is easy to strike the sections that don't apply to your project.

The sections regarding responsibility of the parties, insurance, dispute resolution, and termination of the contract are the most important and are often inadequate or missing in a contractor written contract.

A105 is the basic Owner-Contractor Agreement form for a small project like a house using a Stipulated Sum and it contains it's own General Conditions. It's only 10 pages long and usually costs $8.00

For a Cost of the Work with a Fixed Fee contract you will probably have to use A107 plus Exhibit A. It also contains it's own General Conditions but is a bit longer and costs $10.00

The bottom line is, whoever's lawyer drafts the contract is going to be looking out for his client first and foremost! You can bank on it that a form agreement will be slanted to protect that person. The American Institute of Architects did not pay their lawyers to draft a form agreement that would disadvantage their member architects!

Unfortunately, homeowners don't have big homeowner associations that hire teams of high-priced lawyers to draft contracts slanted in favor of the homeowner. Builders do and Architects do... so those are the form agreements whose language has been "tested in the courts" - unfortunately, very often to the disadvantage of the homeowner.

Just because language has been tested in the courts - does not mean it is FAIR to both sides. It just means that the courts have decided what the language means. And you can bet that every time a court decision comes down where the AIA contract winds up being intepreted against the architect, or a builder association's form contract winds up being interpreted against the builder, the lawyers go back to work and REVISE the language that bit their client so that it doesn't happen again! The result is that over time the form contracts promulgated by builders' assocaiations and to some extent the AIA have become more and more biased against the homeowner - and they have become harder and harder for the homeowner to fight.

I know because before drafting my agreement with my builder, I looked at form contracts from both the AIA and builder's associations from 40 or 50 years ago and the most recent versions. As a homeowner and a lawyer, I would have been reasonably happy to use the older agreements with only very minor changes. The most recent ones though? NO WAY!

It is fine to use the language from a form contact as a starting point in drafting an agreement with your builder. BUT, it is up to you and your lawyer to make sure that every clause that protects the builder (or the architect) is balanced by similar, parallel clauses that provides equal protection to you as the homeowner...or those builder-protection and architect-protection clauses need to be deleted from the agreement completely.

And do not ever, ever, ever sign any homebuilding agreement that requires you to submit disputes to BINDING ARBITRATION.

Binding arbitration is almost always before a "panel of experts" which means people with ties to the building industry. Further, even if an arbitrator wants to be fair, at the back of his or her mind there is the knowledge that if he or she wants to make a living as an arbitrator, he or she must be chosen to arbitrate again and again. A homeowner is unlikely to ever bring more one case to arbitration. A builder is likely to have dozens of disputes over the course of his career and builder associations keep and share records regarding which arbitrators are "friendly" and which are "unfriendly" toward builders. While both sides have a say in who is chosen as an arbitrator, the homeowner has no knowledge to go on except the arbitrator's CV. The builder will hear from his association which arbitrators to avoid. Arbitrators that side with homeowners simply aren't going to get selected for future cases.

I recall reading somewhere about a study that showed that when homeowner/builder diputes go to court, homeowners win about 60% of the time and builders win about 40% of the time. (This is about what I would have expected since homeowners usually just want to get moved in and put the pain of building behind them so they will often swallow a whole LOT before they will go to court. The builder's wrongs have to be pretty egregious before a homeowner will even try to bring a case.) The same study showed that where such disputes went to mandatory arbitration however, builders won more than 90% of the time! Is it any wonder that builder's form contracts push arbitration???

The bottom line is, as the homeowner, the only harm you can really do to a builder (or architect) is to refuse to pay them for their work and/or tell others what a lousy job the builder did. The simplest agreement in the world will protect the builder from not getting paid. If the builder builds something for you, you will have to pay him for the market value of the work completed (or cede the project over to them) EVEN if the house as built is totally NOT the house you wanted in the first place.

Builders (and architects), on the other hand, can harm you in a thousand big and little ways. All the complexities in the contract OUGHT, IMHO, to be spelling out what the builder (and architect) must do to make sure your house is properly and safely built. Instead, what you'll find in either groups' form agreements are clauses that constantly limit the builder's (or architect's) responsibilities toward you, limit the damages they must pay in the event they are found to have harmed you, and limit your options for bringing a case against them.

Sorry, I'll get off my soapbox. But I'm in the midst of litigation with a real louse of a builder who stole from me, failed to follow my plans and specifications, attempted to cover up faulty building practices, and lied to me repeatedly. Less than half-way thru our build I got hit with over $50K in liens from subs and materialmen that my builder had either not paid at all or had paid with rubber checks even though we had given him draws for the work and materials! We wound up paying for the work a second time in order to get the liens released!

My builder also seriously and materially failed to follow my plans and specifications. For one thing, my HVAC units and hundreds of feet of duct work wound up having to be placed in my unairconditioned attic even though the plans specified that that the HVAC was to be entirely within the heated and cooled envelope of the house. Why? Because in order to save himself a few dollars, my builder decided to use i-beam joists between the floors instead of the specified open-web joists. That decision alone seriously compromised the overall value of my house because of the resulting higher energy bills, the resulting loss of attic storage space, and the resulting loss of useable square footage in the house itself due to the chases that had to be run thru upstairs closets in order to bring heated/cooled air down to the first floor. (I lost significant amounts of useable space in both my master bedroom closets and totally lost one of two 2'x5' closetsin another bedroom. The builder's reaction: "well, it's a guest bedroom, one closet is plenty." GRRRR!!!

Builder also misapplied the Tyvek wrap around my house - even though I tried my darnedest to get him to do it correctly, including ultimatley having Dupont send out a Tyvek specialist to advise him on properly using the material and how to correct the installation so the Tyvek warranty would not be voided. I then very specifically and clearly, in the Dupont specialist's presence, ordered my builder to correct the Tyvek installation and not to apply ANY Hardie siding until the corrections had been approved by the Tyvek specialist in writing. Two days later I returned to find half the Hardie siding on my house attached and the Tyvek that was still visible HAD NOT been correct. I rushed home to get my video camera and returned two hours later to videotape as the last of the Hardie was attached over uncorrected Tyvek. When confronted about putting the Hardie on without permission, builder claimed not to have understood that he was to wait to put on the Hardie and tried to claim that all the required corrections to the Tyvek had been made! When confronted with the video evidence that the Tyvek had not been properly redone, he then tried to claim that the was the only spot on the whole house where it had not been done correctly. AMAZING!

I also have doors and windows that do not open and close properly because they were not hung correctly. (We're haven't even moved in yet!) And I had to spend over $10K to raise a section of roof so that my elevator could be installed b/c builder put built the shaft about 1 ft closer to one exterior wall than it was supposed to be!

I could go on and on with other lies and breaches of contract but I won't. Despite all of this, IF I had agreed to use either the AIA form contract or the form contract promulgated by the Texas Association of Builders, I would have been thrown out of court and forced to go to arbitration before a board composed primarily of people with ties to the building industry!!!

And, because I finally got totally fed up and fired my builder before the build was completed, I'm sure he would have argued to the arbitrators that if I had not fired him, he would have fixed everything and paid off all the liens so it is all my fault and I should have to pay him 1/2 of the profit he anticipated making because he finished 1/2 of the house! That at least is the argument that he is trying to make in court. And, nevermind that he has never explained where the money that should have gone to pay those subs went and apparently he cannot do so. He is claiming that he spent more out of pocket on my house than he was ever paid and that I should have to reimburse his "claimed" out of pocket expenses. But he should not have to provide any sort of proof of his expenses because this was supposed to be a fixed price contract so he doesn't have to prove where he spent money.

I don't think any of this will fly in front of any randomly chosen jury. But I have heard of even more egregious arguments being accepted by some of the so-called unbiased arbitrators out there who regularly hear owner-builder disputes.

I feel I still have a chance of getting satisfaction ONLY because I made sure my contract protected me as well as him.

BTW, if you bad-mouth your builder publicly, he can bring a defamation suit against you... which is why I will not ever name my louse of a builder on this forum. If anyone is curious tho, you can email me and I will tell you the court where my lawsuit is filed and you are then free to get copies of all the public filings. Those will give you his name as well as all the nasty details while fully protecting me from any possibility of a defamation lawsuit.

The problem with a "Cost Plus" contract is, how do you know that the builder has made proper estimations? We did this type of contract and were EXTREMELY thorough in everything we wanted in the house. I had everything picked out in the bid (tile, flooring, windows, roof, plumbing, cabinetry, appliances, landscaping, etc). We wanted to know how much it was going to cost to build the house WE WANTED, not just some best guess efforts, then have to add things as we went along and have a huge overage. We thought we protected ourselves against this by having a 20 page bid sheet, going room by room. The builder was a friend, we knew his work and trusted him. He assured me several times that we could build the house for the price that he had given us.

Low and behold, during the construction process we discovered that he had UNDERBID the house by about $500,000!!! He hadn't even bothered to call suppliers to get our pricing, something that would have only required a quick phone call!! He never showed the electrician or the plumbers the plans, leaving us with an installation cost that was DOUBLE the estimates, so instead of being $20k, it was $40K, same thing with the plumbing.

He stopped coming by, work was slow and months off schedule. We had to start hiring our own subs to keep the progress moving. We then discovered about $100k missing from the bank records. We warned him several times and had to eventually fire him and complete the house ourselves. During discovery we uncovered that the missing monies went to pay his own personal expenses (house payment, car payment, jewelry & health insurance, kid activity stuff, dentists, doctors and other homes he was building).

A 3 year legal battle was finally settled, I had one of the best construction law attorney's (wrote legal case articles for the state) and he went thru I think it ended up being 7 attorneys during the process!!! We spent about $200k on legal fees and lots of hair pulling and heartache during that time!!

I would have saved myself alot of money and drama if I had gone to the Construction Attorney to have the contracts drawn up. I could have legally hog tied him so that he couldn't squirm an inch. He was obviously under the impression that he could throw out a number and because it was "cost plus" I would have to pay the overages, which increases his fees, even though he did false estimations.

He put an improper lien on the house, which required us to cash out $50k from a 401k and hand it over to the courts to hold for 6 months until we could file for it to be stricken because he made no attempt to prove it. Now the IRS wants their cut of the "early withdrawal"!!!

He outright lied in depositions and put almost a 1 year hold on the whole thing when his wife became pregnant and got a doctors notice to say it would be to stressful for her to participate until 8-10 weeks after the baby was born. He lied to the judge after he tried to fight the settlement that had been reached with another judge. This was another 3 month battle. The judge wanted to kill him by the time it was finally over, and so did his 7 different attorneys during that 3 year timeframe. His 2nd to last lawyer begged the judge to relieve him from the case.

Meanwhile we had to pay every month on a house that was not finished and couldn't sell for those 3 years. We only lived in it for 4 months before being transferred out of the country.

We read everything before we built and TRULY THOUGHT we had protected ourselves from all the horror stories you hear. Our nightmare started the day we signed those contracts!!!!!

So I URGE YOU TO SEE A CONSTRUCTION ATTORNEY before you sign anything!!!!!!!!

Nothing gets paid for on one of my projects unless it meets the contract drawings, general & special conditions and specifications. IMHO, if you allow a project to get out of control, it can't be made right by litigation, arbitration, or mediation. In a fight everyone gets hurt. The best protection is proper contract administration and that, oddly enough, is what is specified by an AIA contract.

Had we gone to a construction attorney and had a contract written especially for us, maybe it would have put the builder on notice that we wouldn't take any crap and if he had any unscrupulous plans he had better look elsewhere.

It's not easy to keep a project "under control" when you have someone going "rogue" on you and walking off with money that the bank has released to him, money that he is supposed to use on your house. Or when they are pulling off subs from your house to work on their other projects, ones that you unknowingly helped pay for.

It was a hard lesson to learn that as a consumer, you are totally screwed if your builder decides to do things unethically!!!

Of course, it is possible to survive a project where you trust the contractor to protect your interests as well as his own but when they do not coincide, the owner is usually the last to know and has little power since the real owner is the bank.

Even having your architect act as "contract administrator" won't protect you if you get an unscrupulous builder who is willing to present bogus lien waivers from subs (ones he filled out himself and ones he got by giving his subs rubber checks) in order to collect his draws for "finished work". Nor will having your architect act as your contract administrator protect you if your builder skimps on things like tyvek and insulation and then covers over those things with the next layer of materials. It won't protect you when your builder purchases stuff for a spec house he is building for himself and has the materials delivered to your house so that when the supplier doesn't get paid, the leins get placed on your property instead of his!

Typically the architect who is acting as contract administrator will make a certain (limited) number of trips to check on the build progress. They don't go out every day and watch everything like a hawk... which is the only thing that would even possibly have stopped my builder from pulling his shenanigans!

A contract administator will also intervene to clarify what the specs and plans MEAN if there is a disagreement between builder and owner. IF the builder doesn't care what the specs say, then having the architect insist that the plans be followed won't do the homeowner any more good than the homeowner insisting that the plans be followed.

I chose not to hire my architect as the contract administrator b/c, in fact, I had designed the house myself and then taken it to the architect to vet it and get the engineering done. I like my architect but I KNOW the design better than he ever did. After discussing the option of having him administer the contract, I felt that I could do at least as good a job as he would. And I still believe that. IF our builder had had an ethical bone in his body, administering the contract would have been a breeze. As it was, no one could have reined him in. He was robbing Peter to pay Paul and I was the last one in line. He was desperate to build my house as cheaply as he possibly could while getting as much money out of me as fast as he possibly could so he could try to pay off his lawyers who were attempting to protect him from two other lawsuits by aggreived homeowners. He declined to tell me about those when I asked, before we ever signed our contract with him, whether he had ever been sued!

Two weeks into our build, I had already become convinced that we had made a mistake. I talked to my husband about firing our builder before things went any further. DH wasn't convinced. Two months into the build, DH had become convinced we needed to fire him. We talked to our banker to find out what we needed to do. Our banker insisted that we could not fire the builder b/c then our house woud never get built. As imwonderwoman discovered, in a certain sense the bank OWNS the house so they are in the driver's seat and they don't really care so long as it gets "finished". The homeowner is then on the hook to pay the bank for the house regardless of how badly built it is.

After I realized what a scum-bag we had hired, I did my very best to go to the build site at least every other day. It was amazing to me just how much stuff my builder could screw up in 48 hours...when he was working at all. After our banker told us we could not fire him, I basically quit my 60+ hour per week job so I could be at the build site nearly every day.

Once I started watching every single thing that was done - and documenting it all with a video camera, my builder QUIT work. Then the liens started coming in. It took another six months with almost no progress and lie piled on lie piled on lie - and my banker continuously telling me that we HAD to find a way to work with the builder to get the house finished - before I got fed up enough that I decided that I no longer CARED what my banker said. I was going to fire the builder and then figure out how to work things out with the bank. So I sent the builder a certified letter telling him he was fired, then notified the bank that I had done so.

It then took me several more months before I could convince the bank that it was in the bank's best interests to allow me to take down the rest of the loan and finish the build as my own contractor.

By that point tho, I was so broke I had to go back to work full time. So now, almost a year after firing my builder, we are finally getting close to getting the house finished.

It will NEVER be the house we contracted for. We've downgraded almost every finish level since taking over in order to save money and try to bring it in within our budget. For example, I found tile for 99 cents/sq ft and hardwood flooring for $4.49/sq ft. And, DH and I have done a lot of the work ourselves on weekends instead of hiring it out.

Still, between attorney fees, paying off liens that should never have been filed against us, and paying to fix some of the blunders builder made that we simply could not live with, the house will wind up costing us about 25% over the fixed bid price. And no, we did not accept the "lowest bidder." We got three bids, the two higher ones were within $10K of each other. We accepted the HIGHER one because we thought the builder would do a better job. HAH!

You are bringing up some bad memories, lol!!!! We were finally able to convice the bank to allow us to finish it ourselves because it was 75% done. We fired our builder after working with our attorney and making sure we did it the right way and had a paper trail. His first attorney told him to get in the house and finish it but he refused.

We only lived ONE MILE away from the new house, in the same development so I was at the site numerous times a day. We also downgraded TONS of stuff. I went to another state to a wholesale lighting supplier to get all my lights (saved about $10k by doing that) and went to even another state to a tile wholesaler. None of the window seats or closet/pantry shelving got built and lots of the Crown Moulding was never installed.

And yes, the LIES, LIES, LIES he told.....my plans and bid were so thorough I could have handed everything off to him, come back in a year to the house I wanted if he only followed what he signed!!! Ours ended up being a good 50% over the original estimate, and STILL not everything got done.

And like I said, I only lived in it for 4 months before we moved out of the country and its been sitting empty for 3 years. It was finally completed enough to put on the market about 4 months ago. Can you even believe that I am about to build again?????? This time you can guarantee that the contracts will be very tight!!!!

The construction loan was strictly between ourselves and the bank, we just had to nominate a builder for who the draws would go to. So we had no protection against him walking off with the money. We had no way to prove that he used the funds for personal expenses until we finally got him to release the documents during discovery and to talk about it during his deposition, which took 3 Court Orders for him to actually sit for. :-)

We know better now what to have in the contract and how to have a back-up contractor looking out for us as a third party receiving the draws and disbursing instead of relying on the builder to handle it.

Before a payment is made, the owner asks the GC to provide a Conditional Release signed by each of the subcontractors and major suppliers (and any other potential lien claimants). After the owner pays, the contractor provides the owner with an Unconditional Release signed by each of the parties that has been paid for that portion of the work. The construction contract (and usually state law) should give you the right to withhold the next payment until you get the Unconditional Release forms for the previous payment.

It is also normal to withhold a portion of progress payments (called Retainage) and that is gradually reduced toward the end of the job if and when all lien release forms are in order.

In a difficult situation, where the owner does not trust the GC, payment checks can be made out jointly to the GC and the individual suppliers/subcontractors.

Most states offer good advice to homeowners regarding liens so check out your state's website. The rules about time limits for filing a lien are particularly important since many liens are improperly filed (sometimes as a bluff) and can be relatively easily removed.

The AIA does not publish a lien release form because lien laws vary too much from state to state but if progress lien releases are desired, forms should be written and included in the contract. The AIA does publish Form G706A "Contractor's Affidavit of Release of Lien" which would be submitted with requests for payment under an AIA agreement.

AIA 105 (the short form recommended for private homes) says:"The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment, all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or other encumbrances adverse to the Owner's interests." It also says, "Final payment shall not come due until the Contractor submits to the Architect releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Contract."

Getting a contractor to advise you is wise if that contractor is well informed and experienced with contracts but that is also true of an architect. I realize most homeowners do not wish to pay a higher rate for an architect but the advantage of an equally experienced architect is that you know he/she has been trained to provide this kind of service (the part of the state exam regarding contracts is the hardest part of a very long and difficult exam).

Under the "Termination by the Owner" section, A105 says: "The Owner may terminate the Contract if the Contractor fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors." The bank is not privy to this contract and cannot restrict your rights under the contract other than to advise you of extraneous consequences but be careful to distinguish between their potential liability and yours.

As for signing a contract, both parties should initial each page including exhibits and schedules. In the absence of initials, the GC would have to produce a version that he claimed was the original one; he can't just say your copy is not the original if it is dated and accurately referenced in the signed agreement. Both parties should have their own copies of the original agreement and it is a good idea for a third party to hold one as well.

Contrary to the opinions of many who have not actually read all the AIA agreement forms, A105 (recommended for small residential projects) does not contain any provision for "alternate dispute resolution" (such as arbitration, etc.). If an ADR is desired, the instructions suggest they be added under "Other Terms and Conditions". Of course, any section requiring arbitration can be struck in any AIA contract. Since the absence of such an ADR provision automatically allows the parties to take disputes to court, there is really no reason for anyone to whine about the AIA requiring arbitration.

In A105, any provisions for ADR, lien releases/waivers, and any special provisions for your project should be added to the page provided for "Other Terms and Conditions" or referenced there, initialed, and attached. No agreement form can cover all of these project specific issues and A105 is purposely left simple to accommodate the wide variations in conditions for the construction of small projects like private residences.

The discussions found on the internet regarding the provisions of AIA contract forms are almost without exception dealing with the forms for large projects where the use of the AIA forms have been the standard for a hundred years.

We decided to use this builder because we know him (dumb reason) and we decided to help out someone we know since building in our area (southern nj) has been non-existent. He underbid our contract by about 40k we found out later.

Things started out ok once we FINALLY got the loan from the bank. Our builder began removing our deck...it was a remodel/addition. Then he prepared for excavation. The new foundation went in. He began demolition, and on November 16th our roof was removed. WE STILL DON'T HAVE A ROOF. That's right! Through this horrible fall/winter precipitation. He didn't even have tarps the day he took off the roof. When he put them on it was like he was making a bed. He didn't create any peaks for the water to run off. After water started coming into the house, my 69 year old father (former carpenter) and some guys worked to put appropriate tarps with peaks on our home. Meanwhile our builder went in for knee surgery. He was off the job for 8 weeks after that. No one worked. We were stuck because we had given him 55k and didn't want to fire him so we could at least get materials out of him. During that time, we got 2ft. of snow, which on Dec. 26th melted due to the 3 inches of rain we got in one day. The tarps were sagging in my home while water was pouring in. I can't tell you how many nights I stayed up all night worrying. We kept thinking he's going to fix this like he told us he would. Once his knee heals we'll be back underway. Finally, some materials arrived at the house. He installed the second floor which was the first floor ceiling. We were so excited!! My family went up and walke on our new floor. I took pictures of my boys in their new bedroom. I commented to my husband that it didn't seem level. When we were on the first floor, I thought something didn't look right. I swore on the plans the joists ran in the other direction, and I noticed the microlam beams weren't installed as well as the concrete posts in the crawl space. I educated myself so I would know what to look for. I wondered if they did some things differently for good reason, but I was still very skeptical. I mean, he's a licensed contractor, he wouldn't build an unsafe home.

Well, my brother decided to come and check things out that Saturday. He is an estimator for a steel company and attended Drexel University for engineering for a year. He came with all of his tools and gadgets. Before he went up on the second floor to check to see if it was level we wanted to check the first floor. HE DIDN'T BOTHER GOING UP BECAUSE THE DOWNSTAIRS WAS SOOOO BAD. Too many things to list.

At this point, most of the house was gutted because of the damage from the water. I hired a home inspector. He noticed the home was never winterized. The hot water heater was still on, and there was ice in the toilet. He said in all of his 19 years he never saw anything like it. I contacted our insurance company, which I would have done sooner, but people were telling me they probably wouldn't pay. I currently have 3 claims. I am now getting bids from several highly recommended builders who all say they have never seen anyone have such disregard for someone's home. I have a construction lawyer also now. The insurance lady did a walk through with one of our prospective builders to get an idea of the damage cost. She also stated she's never seen anything like it in her 20 years of working for the insurance company. We finally decided to take our chances of losing that money and move on with the build. The builder was given one last chance to get the materials he told me he purchased all along to the site. Never happened, and the check he purchased the wood that was on site bounced. Also, the back of the house and the foyer were wide open to the elements. I have pictures of snow and ice in the house. All of the insulation in the crawl space has to be removed and the floors.

I have copies of all of the checks he was given - front and back. I want him to suffer somehow for what he has done to me and my family. Is it worth it to sue him? You can't get blood from a stone. Am I going to pay more for the lawyer than I'd get in return? Can I report him to the IRS since I know he won't report the money he took from me? My lawyer says I can sue him under the Consumer Fraud Act and it will be attached to all of his future wages. Well, if he gets paid under the table then what?

By the way, I've taken pictures from day 1. I visited the house almost everyday, since I teach less than 1/4 mile away. I kept my camera in my pocketbook at all times.

I'd appreciate any help/advice. I didn't want to post this out of embarrassment. I've been visiting this thread for probably almost 10 years. I've learned so much, but obviously, as a teacher I know, you need to apply what you've learned to really learn. This has been a huge, hurtful learning experience, and I wouldn't wish it on my worst enemy...well...maybe my worst contractor. ;)

You can definitely report what you paid him to the IRS. In fact, tax evasion might be the best way to get that scum-bag in prison where he belongs.

When someone takes money to provide materials and labor and then doesn't provide the materials and labor and refuse to return the money, IMHO that ought to be considered theft. One ought to be able to file criminal charges. Unfortunately, most DAs insist that it is all a cival dispute so that your only recourse is a civil law suit with the attendant expenses for the plaintiff.

Builder got around the requirement for lien releases by providing fraudulent ones. He would pay subcontractor A (who spoke little or no English)for job A with a check and get him to sign a lien release that the sub could neither read nor understand. Builder would fill in the blanks, claiming subcontractor A had done not only job A, but also jobs B, C, and D. Since jobs B, C, and D, had been done by somebody, builder would collect a draw for jobs A, B, C, and D (at an inflated price, no less!) He might pay subcontractors B, C, and D a portion of what they were owed OR he might tell them that he couldn't pay them because homeowner (me) was holding back his money! On top of that, oftentimes the check builder had given to subcontractor A would bounce! It wasn't until subcontactors B, C, and D started filing liens against my property that I learned they HAD NOT been paid.

My banker didn't seem to care. After all, jobs A, B, C, and D had been done and builder had been paid for them. Liens from subcontractors B, C, and D were subordinate to the bank's lien so the bank couldn't care less. Even after I caught on to what was happening, my banker still told me I could not fire my builder but had to find a way to work with him!

Further, the DA won't get involved because to prove fraud based on the fraudulent lien releases would require testimony from subcontractor A who refuses to testify. I suspect subcontractor A may be an illegal alien and builder has threatened to report him to immigration if he testifies!

After subcontractors started contacting me directly, he changed his tactics to make it harder for subcontractors to even notify homeowners that they haven't been paid. On a house in my neighborhood he started building a couple of months after mine, he told the subcontractors and materialmen that HE was the owner of the property even though the land had been owned by the homeowners for several years before they began building. Without information as to the rightful owners, subcontractors would just send lien notices to builder. He just ignored the notices and the liens filed against the property.

Those homeowners were wealthy enough that they were building without the need for a home loan. He actually finished their house and they closed with him without ever discovering the liens! AND, because they were living out of state while the house was being built, they HAD an architect managing the contract!

But, it wasn't until I found the liens against their property in the country records while doing research for my own lawsuit against builder and sent the homeowners copies of the leins that they were even aware builder had not paid all the subs who worked on their house. Those homeowners ultimately decided that just paying off the liens would be cheaper and easier than taking the builder to court - so he got off scott free with his theft against them.

The bottom line is, when a builder is a thief, he can take homeowners to the cleaners and it is VERY hard to protect oneself against the problem.