Kansas law implies that in every contract for work or services, the obligation on the part of the contractor is to perform “skillfully, carefully, diligently and in a workmanlike manner.” This warranty is imposed by law and does not have to be expressed in any contract between the parties. This would include contractors.
So, one option a homeowner has in the event that their contractor provides them with substandard work is to sue them for breach of implied warranty. As a technical matter, a claim of breach of the implied warranty in a construction contract can be treated as either a cause of action in contract or a cause of action in tort. If the homeowner has suffered only economic loss, e.g., the cost of correcting the faulty work that was done, then the claim is a cause of action in contract and not in tort.
In addition, Kansas has a Consumer Protection Act (KCPA) that applies to consumer transactions including the construction or remodeling of a residence. It is designed to prevent deceptive and unconscionable acts on the part of contractors. It is also aimed at giving consumers the ability to recover damages for any loss they suffer.
The KCPA forbids suppliers in a consumer transaction from excluding, changing, or limiting the implied warranties of merchantability and fitness for a particular purpose. They also may not exclude, modify, or limit any remedy provided by law. This applies to the measure of damages in a case for breach of an implied warranty.
In addition, in Kansas, there is the Kansas Construction Defect Act (KCDA), which applies only to the construction of single-family residences, duplexes, or multi-family units intended for use as residences in a common ownership community. It does not apply to homes that are manufactured, e.g. mobile homes. Suing a contractor for poor workmanship is possible under the KCDA.
A person who wants to sue a builder of new residences must do certain things before taking that step. The person must serve the contractor with a first notice of their claim of contract defect. The contractor should then serve a copy on all subcontractors that may have worked on the project. This must be done within 15 days of the contractor’s receipt of their notice.
Within 30 days each contractor who receives a notice must serve a written response on the person making the claim. This response must either propose an inspection, offer to remedy the defect at no cost to the person who served the notice by a specific date, offer to compromise and settle the claim by monetary payment without inspection by a specific date, or reject the disputed claim.
If the contractor does not respond in any way, the person may file a lawsuit. However, if the person agrees to an inspection, the inspection must take place within 30 days of the claim being served.
Then, within 30 days of the inspection, the contractor must serve a written offer to either remedy the defect, make a compromise settlement, or state that the contractor refuses to provide any further remedy of the defect.
If the contractor does not respond or if the person receives a written statement that the contractor does not intend to remedy the defect, the person may bring an action against the contractor without further notice.
Or, if the person rejects the contractor’s offer to either remedy the defect or to make the monetary payment, the person must serve the contractor with a written notice of their rejection of the contractor’s offer. The person may then file a lawsuit against the contractor without further notice.
What Are Some Legal Claims That Can Be Filed Against a Contractor?
Some of the legal claims that a person might use when they sue a contractor are as follows:
- Breach of Contract: If a homeowner has a contract with a construction contractor and the contractor fails to perform as promised in the contract, this is a breach of contract. The homeowner may sue the contractor for breach of contract to recover compensatory damages for their losses;
- Breach of Implied Warranty: As noted above, Kansas law helpfully implies that in every contract for work or services, the obligation on the part of the contractor is to perform them “skillfully, carefully, diligently and in a workmanlike manner.” If a contractor provides a product that is not done “skillfully, carefully, diligently and in a workmanlike manner,” they may sue the contractor for breach of this implied warranty;
- Breach of Express Warranty: If a person has a contract with the contractor who performed work on their residence that contains an express warranty as to the quality of the work that is provided under the contract and it is violated, the person may sue the contractor for breach of express warranty;
- Negligence: Negligence actions remain viable remedies for construction defect claims where the parties do not have a contractual relationship. If they do, the homeowner must sue for breach of contract or warranty. However, where a person suffers personal injury or property damage due to construction defects, they may sue a contractor for negligence;
- Fraudulent Misrepresentation: A person may claim that a contractor is liable for negligent or intentional fraudulent misrepresentation in connection with deficient construction work. The necessary elements of fraud are:
- A representation was made as a statement of a material fact;
- The party making the statement knew that it was not true or was made in reckless disregard for the truth;
- The party claiming fraud was justified in relying on the statement;
- The party alleging fraud relied on the statement;
- As a result of this reliance, the party claiming fraud suffered damage.
- An Action under the Kansas Construction Defect Act: This would only be available in the case of new single-family, duplex, or condominium construction, as noted above.
Can I Sue a Contractor Without a Contract?
If a person has hired a contractor in Kansas to do residential construction work for them, the person has entered into a contract with the contractor. The parties to the contract may not put it in writing, but a contract may be perfectly enforceable in court, even if it is oral.
So, even if a person has not reduced their agreement with their contractor to a written document, they may still have a contract. It is oral. This is because they talked about the project and, in this way, created a valid oral contract.
It is important to recognize that a person should have a written contract for their residential construction project. If there is a dispute, having a contract in writing makes it much easier to prove that there is a contract and what its provisions are.
How Do I Sue for Breach of Contract?
In Kansas, a person can sue for up to $6,000 in damages in the small claims division of a Kansas district court. Kansas small claims courts are designed to allow parties to resolve their civil disputes quickly and at a lower cost. People may represent themselves, so they would not have to pay a lawyer.
It is best to seek a resolution of a dispute outside of a court of law before taking legal action.
A local attorney in Kansas would be able to help a person get a fair resolution of their dispute with a contractor without going to court.
If settling differences outside of court proves to be impossible, a person may always draft a complaint and file it with the Clerk of the Court in the appropriate Kansas court.
The contractor who is sued has 30 days to file their formal answer to the complaint. The lawsuit would proceed from there.
How Much Does It Cost to Sue a Contractor?
It is not possible to provide a specific amount to answer this question. The cost would be different for different cases. One case might present a relatively easy issue and require less time and effort to resolve. How much it would cost to sue a contractor is going to depend on several factors, such as the amount the attorney charges for their services.
If a person files their complaint in a Kansas small claims court, they would not have to have an attorney. This would greatly reduce the cost of a lawsuit against a contractor. However, they would only be able to recover $6,000 in damages.
If a person sues the contractor in a Kansas district court with attorney representation, the cost would depend on the attorney’s hourly rate and the number of hours the attorney devotes to the case before it comes to a conclusion. That is because most attorneys would bill a client on the basis of an hourly fee for every hour they work on the case.
Reportedly, the average hourly rate for a Kansas lawyer is about $227 an hour. This is the average rate. Some lawyers would charge a higher rate. However, using this rate, a person would be able to estimate the cost of a case.
They should also ask their lawyer to estimate the total cost of going forward with a case. In addition to attorney’s fees, a person would have to pay other expenses, e.g., the cost of filing a complaint in court. There could be other expenses associated with a lawsuit as well.
When suing a contractor for poor workmanship, a person would probably need an expert witness to testify about the contractor’s deficient work. Expert witnesses have to be paid, so this would add to the cost.
What Is the Statute of Limitations for Contract Disputes?
The implied warranty theory is subject to a 3-year statute of limitations that begins to run at the time of the breach. The statute of limitations for a negligence action is 2 years from the date when substantial damage first occurs or the injured party becomes aware of their injury.
The statute of limitations for actions filed under the KCPA, in which damages and civil penalties are requested, is 3 years.
The statute of limitations for breach of a written contract is 5 years, and for breach of an oral contract, it is 3 years. The statute of limitations for fraud is 2 years from the date when the fraud is discovered.
Do I Need an Attorney for Suing a Contractor?
If you have received substandard work from a residential building contractor, you want to talk to a Kansas contract lawyer. LegalMatch.com can connect you to an experienced contract lawyer who can analyze the facts of your situation and tell you what options you have under Kansas law. Kansas law offers several protections to homeowners, but it is complicated. A Kansas lawyer will guide you through Kansas law to a path to the remedy you need and deserve.
