MY CONTRACTOR DAMAGED MY PROPERTY DURING A REMODELLING PROJECT, IS UNLICENSED, AND DOES NOT HAVE INSURANCE – WHAT CAN I DO?
Our office is often contacted by homeowners whose property has been damaged by a contractor during a home remodeling project. What’s worse is that the contractor is discovered not to have a license, as required by Virginia law, so filing a complaint with the Virginia Department of Professional and Occupational Regulation (DPOR) would serve no good. So what are your options as a homeowner in Virginia?
Definition of A “Contractor” Under Virginia Code 54.1-1100:
Virginia Code § 54.1-1100 defines a “Contractor” very broadly as follows:
“Contractor” means any person, that for a fixed price, commission, fee, or percentage undertakes to bid upon, or accepts, or offers to accept, orders or contracts for performing, managing, or superintending in whole or in part, the construction, removal, repair or improvement of any building or structure permanently annexed to real property owned, controlled, or leased by him or another person or any other improvements to such real property. For purposes of this chapter, “improvement” shall include (i) remediation, cleanup, or containment of premises to remove contaminants or (ii) site work necessary to make certain real property usable for human occupancy according to the guidelines established pursuant to § 32.1-11.7.
There are three classes of contractors – Classes A, B and C – with each subject to certain financial and monetary limits. Those details can be viewed in this article that we published on Mandatory Clauses In Virginia Residential Contracting Agreements. (10 Must Have Clauses Virginia Contractors MUST HAVE in their Contracts PER DPOR Regulations or risk potential disciplinary action)
Virginia Code 54.1-1115 and Unlicensed Contracting Work.
It is important to recognize that Virginia criminalizes unlicensed contracting work as a Class 1 misdemeanor under Virginia Code 54.1-1115. Virginia Code § 54.1-1115 (Prohibited acts), subsection (A)(1) of which states in relevant part:
- The following acts are prohibited and shall constitute the commission of a Class 1 misdemeanor.
- Contracting for, or bidding upon the construction, removal, repair or improvements to or upon real property owned, controlled or leased by another person without a license or certificate, or without the proper class of license as defined in § 54.1-1100 for the value of work to be performed.
“The statute is designed to protect the public from inexperienced, unscrupulous, irresponsible, or incompetent contractors and to effectuate this purpose it requires a demonstration of ability, character, and financial responsibility as well as a good record of past performance.” See F. S. Bowen Elec. Co. v. Foley, 194 Va. 92, 96, 72 S.E.2d 388, 391 (1952).
What Options Does A Property Owner Have?
One option is to file a criminal complaint against the unlicensed contractor under the code section cited above. As far as civil remedies are concerned, the property owner could potentially sue the contractor on various theories, including but not limited to, for (1) fraud in the inducement; (2) Virginia Consumer Protection Act violations; (3) breach of contract and /or unjust enrichment.
What’s significant to note is that the unlicensed contractor cannot sue the homeowner for breach of contract, because enforcement of such a contract would violate Virginia public policy. “Public policy requires that a contract entered into by an unlicensed contractor be deemed illegal, not because of the subject matter, but because of the fault of the contractor in failing to comply with the statute” see Enlow & Son, Inc. v. Higgerson, 201 Va. 780, 787, 113 S.E.2d 855, 860 (1960) (quoting Cohen v. Mayflower Corp., 196 Va., at page 1161, 86 S.E.2d, at page 864).
Remember, that simply because the Contractor is doing business through an LLC or corporation does not mean that he or she is licensed. If you wish to investigate whether the contractor is licensed, you may look up his license at the DPOR’s license lookup website here.
To discuss your options as a property owner whose property has been damaged by a contractor, please contact us at Fox and Moghul – your Virginia Real Estate Lawyers are here to help.
