If your familiar with my Guide to Contractor Disputes, then you already know that among the most important things to remember when hiring a general contractor is ensuring that your home improvement contract contains an attorneys’ fees provision. Contrary to what most people think, a prevailing party (i.e., the party that “wins” the lawsuit) is not automatically entitled to repayment of their attorneys’ fees and costs.
Unlike the legal systems in several other Western countries, which have mandatory “loser pays” provisions, that is not the case in a lot of states—most especially, in California. Here, a prevailing party is only entitled to attorneys’ fees if a statute or contract provides for that remedy.
Fortunately, many do (but some don’t).
The short answer, therefore, to this often-asked questions is this: Yes, but only if your contract has a provision that awards attorneys’ fees to the prevailing party.
So, if you’re asking this question because you are already embroiled in a dispute with your contractor, or are about to be, then find an experienced attorney to review your contract with you to see if it mentions anything about a party being entitled to their attorneys’ fees and costs following any “action” or “lawsuit.” And don’t worry if your contract ends up having language that only seems to grant that right to the contractor. Such language is, by statute, going to be treated as a mutual right regardless of the wording.
And keep this in mind too. Regardless of whether or not your contract has an attorneys’ fees provision (which really only matters if a case goes to trial, thus leading one of the parties to be the “prevailing party”), because the vast majority of cases settle before ever getting to trial, a lot of homeowners, including those with contracts that don’t contain the desired language, can still get the contractor to repay their attorneys’ fees as part of the settlement process. So, even in cases where no such provision exists, there is always hope. It really depends upon the nature of your dispute, as well as the talent of your attorneys.
But, if you’re asking this question before you’ve entered into a contract with a contractor, then insist upon such a provision if it’s not already in what you’re given. If the contractor refuses, then walk away and find another contractor. Legitimate contractors are willing to stand by their work, and therefore won’t care about including such a provision.