Q: How do I recover a down payment to a general contracting company that is making no effort to communicate or do the work?

A: It depends on the nature of the job and what a reasonable time for completion of that particular job is.

In a contract, the parties usually must explicitly agree on a firm completion date if it is important to the parties when the work must be performed. The phrase used to describe this is: "Time is of the essence." Otherwise, the law presumes that the work must be performed in a reasonable time depending on the nature of the work and the surrounding circumstances. In construction contracts, some circumstances that may be important are the weather and the availability of the materials to be used in the work.

Before terminating a construction contract, it is usually better to give the contractor written notice and an opportunity to cure. For example, you might say "a reasonable period of time to complete the work has passed" and that the contractor should cure its failure to perform by "commencing work within 10 days and completing the project in its entirety within 30 days" if those times are reasonable given the nature of the work. You might also ask the contractor to give you notice "if there are exigent circumstances justifying a further delay in commencing the work."

A: Recently had a decision from the Fifth District that held that the contract did not have a completion date, and the contract did not state that "time was of the essence", therefore the absence from the project for even a long period of time was not a material breach. Attempting to "fire" the contractor could be a breach on your part.

I would suggest that you provide a notice of default, stating the last time that you had contact and that unless the contractor made contact with you, you would consider that he abandoned the contract and that you would consider him to be in default. A notice of default should then be issued giving the contractor 60 days to cure the default.