Unlicensed & uninsured contractor

Our maintenance man has been working as an independent contractor here for over 5 years. His contracts have always said he is responsible for having his own liability and worker's comp insurance, as well as a valid county contractor's license. A few homeowners last week discovered he has neither. His contract also calls for him to receive no holiday or vacation pay and looking through the monthly financial reports showed that he got paid every 2 weeks like clockwork even though he took every holiday off and received a week's worth of vacation in June. The chair of the maintenance committee described that week as "comp time". Which I have never heard of for an independent contractor.

He wasn't here at all last Monday (Labor Day holiday), he was here for about 4 hours on Tuesday, not here again on Wednesday. He is said to have suffered a heart attack on Tuesday afternoon. Details are sparse due to medical privacy issues. The chair of the maintenance committee expects him to be here Monday morning and the first thing on his TODO list is to climb a ladder to paint some fascia boards on the clubhouse.

The entire board is aware of the situation and 4 of 6 are not inclined to do anything about it. The other 2 think he should have to present some sort of doctor's note clearing him for work. I think we should form a human chain and block him from entering the subdivision until he has a valid contractor's license and suitable insurance. Nobody seems to care that he's in breach of the contract.

To me this is instanity. This situation is bad, right? I ask because most people I've mentioned this to seem to smile and give me that old, "There you go again!" look. Is it just me and a handful of other owners overreacting?

We think he is essentially an employee and the tax man would also come to that determination. He's makes the equivalent of $25 an hour for a 40-hour week but he's only here about 30 hours a week. When questioned about whether or not we're getting our money's worth, the answer from the old-timers who control the maintenance committee is always the same: "He's an independent contractor and we can't control his hours". He spends more time doing private side-jobs for homeowners (using association equipment and facilities) than he does doing work for the association. There is zero accountability for his time.

Paragraph 1, "Independent Contractor: Association hereby engages the Contractor as an independent contractor," and, "This Agreement shall not render the Contractor an employee of the Association for any purpose. Upon signing, the Contractor will furnish the Association a copy of his Contractor's license."

He does not now and never has had any type of contractor's license in this county.

Paragraph 6, "Insurance: The Contractor will carry liability insurance, to include workman's compensation, relative to any service that is performed for the Association and will submit a certificate of such insurance upon renewal annually."

He has no workman's comp policy. He has a general liability policy that specifically excludes climbing ladders, electrical work and working on roofs. He does all of that here at the direction of the maintenance committee ignoring the fact that his duties, as specified in the contract, don't include any of that. He re-wired some of our street lights a couple of weeks ago. In the spring his son helped him one week to do roof jack inspections for squirrel damage. The son doesn't hold a contractor's license, either, was not covered by any insurance, and is legally blind in one eye.

Either way I think no license and no insurance constitute material breaches of the contract. I find it hard to believe that we're not exposed to significant liability under this arrangement.

If I were in your HOA, I would join your human chain. We need one too. We have a homeowner screwing with the water and no one stops him. He gets in the ground and experiments with which knob shuts off what water source.

He disagrees with the association's watering schedule. We're wasting it. He's a vigilante! No one seems worried about the liability issue either.

HOAs are insane places. I used to say 'We're all residents of a mental asylum but no one tells us. They let us in and out to keep the secret. The meds are in the HOA provided water'.

It could be true. Except the meds aren't very effective. I stay safe. Only bottled water for me.

Tim,

Are you stating that 'one gets what one pays for' ?

I agree with you, Geno. There IS a conflict of interest. I agree that your HOA is exposed to significant liability if the Board keeps him. And ALL wonrs could end up paying!

The liability issue is borderline keeping a few of us up at night. The board played ostrich because as near as I can tell, he was less expensive than hiring licensed and insured contractors. We saved money by keeping him around. Doing the right thing would have cost more money and Job #1 for the last 12 years of boards here was keeping monthly assessments as low as possible.

I found out yesterday that a homeowner discovered a small roof leak last week. She called the chair of the maintenance committee to report it. The next step should have been obtaining permission for the homeowner to engage a roofer to come in and fix the leak. Instead, the maintenance chair sent our unlicensed maintenance contractor to the woman's house to inspect the leak. He went up on the roof and provided an unqualified and wrong opinion on the problem, and later on that afternoon he had the heart attack. The homeowner was beside herself when she learned he doesn't have a license or insurance.

More people are waking up and seeing the risk of keeping him here. He may be here until the end of next January if the current board doesn't do anything about the situation. We've got our fingers crossed that he doesn't suffer a fatal heart attack while up on someone's roof before then. No one should have to live with that fear.

MOST PEOPLE WHO BUILD THE HOMES IN MY COMMUNITY WERE NOT AMERICAN!

I’ll be more direct.

Kathleen should not be on this forum ... or, any other.

ps. we all know what she meant, I am merely correcting what she wrote

How exactly was your HOA paying this guy?? was he given a paycheck? or was he given a check from the ledger? At the end of the year was he even given a 1099 or W2?

Then his contract should (else nonfeasance of the BOD) be terminated for cause.

Simple.