Q: Can we subtract cost to fix contractor's mistake from final invoice or do we have to pay and then sue for reimbursement?
Just closed on new construction home and moved in with verbal agreement with contractor that he would fix drainage issues in yard. Two attempts to correct were unsuccessful. Photos and email sent to contractor showing water still pooling. No response. We contacted reputable landscape/excavation company who advised lot prep and building excavation was done improperly and would cost about $15,000 to fix. We still owe $35,000 to contractor for final draw request. Can we subtract cost to fix contractor's mistake from amount due contractor, or do we have to pay in full and then sue for reimbursement?
A: A lot of money is at issue. Have an attorney read the contract and do a consultation. The answer to your question is “it depends.” If you pay then sue you may face an affirmative defense of the “voluntary payment doctrine.” But there’s a type of claim to which case law holds that defense doesn’t apply.
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