January 23, 2023 by Tom Roberts, Esq.
My contractor took my deposit and disappeared!
Call the law firm - Thomas H Roberts & Associates, PC 804-783-2000
Virginia Contractor Fraud
When you are faced with Virginia contractor fraud, you need to take prompt steps to protect your rights. What to do when a Virginia Contractor takes your deposit but doesn’t do the work? The most important step is to contact competent legal counsel!
Step 1 - What should I do if the Contractor took my deposit or advance?
Send by certified mail, return receipt requested to the Contractor at his last known address listed on the contract a request that he return the deposit!
MAKE SURE YOU KEEP A COPY OF THE LETTER AND THE MAIL RECEIPT!
(DO NOT INCLUDE ANYTHING OTHER THAN REQUEST THAT THE CONTRACTOR “RETURN SUCH ADVANCE” – SEE BELOW)
Step 2 - What if the Contractor does not return the deposit or perform?
CALL 804-783-2000 FOR LEGAL HELP!
Litigation is best left to those who have experience with the law and courts!
What is the Difference between Contractor Fraud and Breach of Contract in Virginia?
The Virginia Supreme Court made it clear that the criminal charge of contractor fraud was not meant to address simple breach of contract cases involving contractors. The court stated:
“The construction fraud statute, Code § 18.2-200.1, was not meant simply to criminalize a contractor‘s breach of contract. The statute instead criminalizes a species of fraud analogous to the crime of obtaining money under false pretenses. Cf. Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807-08 (1977) (setting forth the elements of larceny by false pretenses). The only analogue in civil law to construction fraud would be promissory fraud, which recognizes tort liability when a contracting party “makes a promise that, when made, he has no intention of performing.”” Bowman v. Commonwealth, 290 Va. 492, 497, 777 S.E.2d 851, 855 (2015) quoting Station #2, LLC v. Lynch, 280 Va. 166, 172, 695 S.E.2d 537, 540 (2010).
Virginia Code § 18.2-200.1
If any person obtain from another an advance of money, merchandise or other thing, of value, with fraudulent intent, upon a promise to perform construction, removal, repair or improvement of any building or structure permanently annexed to real property, or any other improvements to such real property, including horticulture, nursery or forest products, and fail or refuse to perform such promise, and also fail to substantially make good such advance, he shall be deemed guilty of the larceny of such money, merchandise or other thing if he fails to return such advance within fifteen days of a request to do so sent by certified mail, return receipt requested, to his last known address or to the address listed in the contract.
Nothing other than an unqualified demand to return all or part of the original advance
The Supreme Court has also made clear that for the presumption of § 18.2-200.1 to apply the letter should be nothing other than an unqualified demand to return all or part of the original advance.
Bowman v. Commonwealth, 290 Va. 492, 498, 777 S.E.2d 851, 856 (2015)
Nothing herein shall be deemed legal advice — this is general information. You should consult with an attorney.
Thomas H. Roberts & Associates, PC
105 S 1st Street
Richmond, Virginia 23219
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