Can I Sue for a Bad Paint Job?

Imagine that you're a homeowner remodeling your kitchen. You want the cabinets redone with special teal paint and white trim, just like you saw in your favorite home improvement magazine. Or imagine that you own an expensive vintage car. You hire a body shop recommended by the car dealership to touch up the paint with a clear coat. You want it to shine like new.

Now, imagine your cabinets are painted forest green instead of teal. Or the coat of paint used on your fancy car flakes within a week.

Can you sue? Absolutely.

This article explores two potential claims you may bring for a bad paint job. It also covers the basic steps you should take when considering your legal issue.

Legal Claims

Two of the most likely claims you may bring against a painting contractor for a poor construction project are breach of contract and misrepresentation. This section discusses both.

Breach of Contract

Most people understand the basic concept behind the breach of a contract. Someone doesn't do something they promised they would do in exchange for something else. That said, the nuts and bolts can get tricky.

Contract Elements. A breach-of-contract claim first requires a valid contract. A valid contract is formed by three elements:

1. Offer
2. Acceptance
3. Consideration (i.e., a mutual exchange of value)

If any of these elements is missing, there is no contract to breach.

Consideration can be a little confusing. To illustrate, a painting contractor might offer to paint your kitchen cabinets, which you might accept. In the kitchen example, the consideration would be the paint job in exchange for your payment.

Written vs. Oral Contracts. If you enter a written contract with a professional painter, it will likely include things like:

• A description of the work that will be performed
• How much you will pay for it
• A time frame or deadline
• Any specific conditions (e.g., your special teal paint)

If any of the express terms of your written contract are violated, the contract is breached.

What if you ask your buddy, who happens to be a painter, to paint your cabinets for a price? As long as all three elements of contract formation are present, you still have an oral contract. With some exceptions, oral contracts are just as enforceable as written ones. But you'll likely have a harder time proving that specific contract terms were breached if you don't have the terms in writing.

Importantly, even if you have a written contract, additional terms may be implied by law. It depends on the circumstances of your deal. For example, a contract to paint cabinets or a car includes a minimum standard of workmanship. Whether implied as a condition or a warranty, this standard is legally enforceable, even though it may not be spelled out in the contract.

Two Kinds of Breaches. Remember that not all breaches are the same. A "minor breach" means there was only a slight deviation from the contract terms (e.g., the painter used an identical paint from a different brand). You still got the benefit of your bargain. By contrast, a "material breach" is a major failure to deliver what was promised (e.g., you have paint problems, such as peeling paint). You didn't get what you bargained for.

A material breach excuses the non-breaching party from performing their end of the bargain (i.e., paying the painter). Not so with a minor breach. So, don't refuse to pay your painter for using a different brand. You may still recover damages for a minor breach, such as the difference in price between the paint brand you wanted and the brand you got.

Misrepresentation

Misrepresentation is exactly what it sounds like—a false or misleading statement. If a painter makes a statement to convince you to enter a contract and you suffer a loss as a result, you may bring a claim for misrepresentation seeking damages or rescission (i.e., undoing the contract).

Misrepresentation may be negligent or intentional. Negligent misrepresentation is merely being careless with the truth. Intentional misrepresentation is a lie. Consider the following examples:

• Negligent misrepresentation: A painter says, "I will use your special teal paint." They were quite certain they could get your paint in your chosen brand, but they did not check beforehand. They go to the store the next day and, as it turns out, they learn that the teal paint was discontinued by the manufacturer last year.

• Intentional misrepresentation: A painter says, "I will use your special teal paint." The painter knows that your brand does not carry teal paint. They lied to you anyway and intend to use lower-quality paint from another brand without telling you.

What Can I Recover?

What you can recover for a bad paint job depends on the type of claim.

Breach of Contract

If you enter a contract for a paint job and don't get what you pay for, you may be entitled to monetary compensation, known as damages. In general, the goal of damages for a breached contract for construction work is to put the non-breaching party in the same position they would have been in had things gone as agreed. So, for a bad paint job, you could recover the cost of getting the job brought up to contract specifications.

Be aware that you have a duty to mitigate damages. That means that you must do what you can to avoid costs. You can't run up the bill.

If damages would be speculative or difficult to prove, you might include a liquidated damages provision in your contract. A liquidated damages provision spells out the amount of money you would get if the other side breaches the contract. As long as the amount isn't intended to punish the other side for failing to perform, a court would award you liquidated damages in the case of a breach.

Misrepresentation

If you sue for misrepresentation, you may also be able to recover compensatory damages. Generally, that would consist of money to compensate you for reasonably foreseeable losses you sustained. This could be the amount of money you'd get if you sued for breach of contract, but that isn't always the case.

You may also be able to recover punitive damages. Punitive damages are intended to punish a wrongdoer for outrageous behavior. For example, if your contractor painted racial slurs on your walls, you may be able to recover punitive damages as well as compensatory damages.

Statute of Limitations

Regardless of which claims you choose to bring, you must always comply with a deadline known as the statute of limitations. If you wait too long and the deadline passes, you will lose your right to bring a case.

Statutes of limitations in contract and misrepresentation cases are generally governed by state law, and each state sets its own deadline. Some give as few as two years and others give as many as 10. Note that many states set different deadlines for written and oral contracts—you often have less time to sue on an oral contract than a written one.

To avoid problems with statutes of limitations, it is best to speak with an experienced contract attorney sooner than later. To find your state's statute of limitations, see State Civil Statute of Limitations Laws.

What Should I Do Next?

So, having gone through some technical ins and outs of the law, you may be wondering what to do next. This section explores some basic steps you can take if you're unhappy with your paint job.

1. Document the Paint Job. You should first document the bad paint job as thoroughly as possible. As the saying goes, a picture is worth a thousand words. A video may be worth more. If you discussed specifications verbally or in writing, your documentation should reflect where things fall short. Ideally, you'll have before-and-after evidence of the botched or incomplete work.

2. Notify the Contractor. You should first notify the contractor in writing. Send them a demand letter. Be specific about your complaints. They may be able to repaint the project to your satisfaction. If the problem is not fixed, your notice will serve as useful evidence.

Further, if you plan on bringing a breach-of-contract claim, consider giving the contractor a reasonable opportunity to cure their breach. This is a chance to bring their work up to contract specifications. You let them know what's wrong and give them the chance to fix it. Some contracts may actually require you to give a chance to cure, especially if the contractor wrote it.

3. Take Your Case to Civil Court or Arbitration. If all else fails, you can seek legal recourse in court. If the amount in dispute is below a certain value, your case will go to a small claims court specializing in handling minor disputes. Unlike personal injury cases, bad-paint-job cases often fall into this category. For more, see How Do I File a Small Claims Court Lawsuit?

Each state sets a maximum value for cases that may be heard in a small claims court. Though values range widely from state to state, small claims courts are often less formal than higher-level courts. Some small claims courts do not even allow parties to have attorneys. For more, see FindLaw's state-by-state directory to small claims courts.

An alternative is to pursue arbitration for the poor workmanship. Arbitration is an out-of-court process in which the parties to a dispute choose someone like a lawyer or a retired judge to decide the issue for them. It can be cheaper than going to court. But you generally give up the right to appeal, a jury trial, or filing a class action.

4. Enforce the Judgment. Assuming you win in court, you'll still need to collect your money. Unfortunately, this is often where litigants run into the most difficulty. You can try enforcing the order through real estate liens, wage garnishments, bank levies, etc. But things can get complicated quickly. If you haven't already done so, it may be best to seek legal advice from an attorney. For more, see After a Judgment: Collecting Money.

A Lawyer Can Help

There is something therapeutic about the visual satisfaction of a good paint job. On the other hand, a bad paint job can be extremely off-putting. If you're unhappy with a lackluster paint job, you may have a legal claim on your hands. An experienced contracts lawyer can provide valuable legal advice and help you take legal action if necessary.