Did you hold back a 5 or 10% contingency till after punch list was done?

no we honestly didn't know that we should do that, we also had to sign off a lien waiver to the bank saying everythign had been paid

Did you buy the house from the builder? or did you own the lot / pay for custom? Did you provide last draw with "paid in full"? or have other documentation? What does your contract look like?

we owned the land and had them build. we do have a lien waiver and certificate of completion signed by him. so now he's saying he won't do the warranty work to the foundation and ceilings if we don't pay this last invoice

Yes, we got some bills after we moved into our house. We had no problems paying our builder for work he had done, but had not been able to invoice before. There are lots of "moving" parts to a build and some vendors/subs don't provide bills in a timely manner, which then causes delays for the builder.

Now, if he didn't do the work or is double billing you, then that is a completely different problem.

Is the builder asking you to pay for things that he did, but you haven't yet paid him for?

work was completed in october, he got invoiced in march, and today told us we owe him money

Sometimes scope/magnitude matters. How much was the build and how much is the outstanding invoice?

A builder does have a duty to invoice you in a timely manner. When there is a construction loan involved, the closing of the construction loan or conversion into a permanent loan typically serves as the effective deadline for making you aware of outstanding balances. This is not to say that you must have all final bills, but you need to be made aware of any outstanding bills so you can plan appropriately.

When you receive bills after the closing or a reasonable deadline, things get muddy... On one hand this is money that you owe and should pay, however, on the other hand you relied on the builder to provide timely billing statements and shouldn't be damaged by his inability to do so. Which are largely the two arguments that get made in these cases... your obligation to pay vs. detrimental reliance on his obligation to properly bill.

So... where does that leave you? I suspect if you want your punch list completed you either pay him the money or pay an attorney even more money to convince him to change his mind... even then you might win the billing war and lose the warranty war.

some of it is punch list stuff, some if it is warranty work (foundation cracks are the major piece). he's threatening not to do warranty work without us paying for an engineering invoice. i'm not sure if i trust that the invoice is even real after working with him for so long. he tried double billing us for wall studs, as well as for decking material 3x bigger than our deck.

Every time I have done cost plus builds, there was an outstanding bill about 3 months after CO. Bills that came in later. It was typically 3-5% of total build cost I think.

This seems like a LONG delay.

I think you'll ultimately have to decide how much this is vs being on your own for future repairs.

If he's this shady, his "warranty" may not be worth much.

Anythig you decide - a consult with an attorney to protect you the best you can (i.e. if you pay, writing final payment, confirming warranty validity with dates, etc) is a worthwhile investment.

Has the builder performed work that has not been compensated for and not included in a previous payment, and you have receive benefit from?

You don't need a lawyer; you've lost the minute you engage one. You've got a stalemate. If you don't pay, he doesn't punch and you use the money that was to go to him to punch out. Simply make a deal. He punches and you pay his outstanding bill. Geesh.

Why would you not pay for work done on your behalf?

There's nothing wrong with consulting with an attorney. The builder doesn't even need to know you are engaging one - and in fact - good attorneys stay in the background and just help you move through the best resolution without ceding ground IF this were to escalate into a legal action. The OP has already stated they need "warranty work" on the foundation of a pretty new home. I don't know what that is (cosmetic? structural?) but preserving your rights in this area is a good idea and having an attorney on your team can help that.

again - consulting with an attorney does not mean you are suing, or even that they are sending any correspondence. They will provide reminders to work via email, stay fact based, follow up via email if there's a meeting or phone conversation, don't in advertently say things that will hurt you, etc.

we would probably give them the benefit of the doubt if the builder hadn't tried to double bill us for wall studs, and for other materials that were never used on the house. we're having trouble with the idea that this was done well before we closed, the sub generated a bill in march, and the builder has been sitting on it until mid may

So I’m hearing a couple different things.

Sounds painful no matter what, but maybe survive-able.

Hmm, maybe some of that warranty work (foundation cracks) are a major issues and he is trying to collect more money to repair a problem he caused?

I would call an independent engineer that you hire to look at these cracks and give you a report. Use the report to get some quotes from companies that specialize in foundation repairs.

Have you taken photos of all those "paid in full" documents and sent them to your builder in one email?

Unfortunately, you are going to pay one way or another.

Yes 10000%, they've been sitting supposedly on this invoice for 2+ months, and didn't bring it up until he scheduled his foundation company for the repairs. I fully believe he's trying to cover most of his costs for the foundation repair.

Just to be clear... A full and final payment notice is a contract. It has the power of any other legal settlement. The contractor agrees forego any other money on existing work for the specified amount of money.

The contractor has no right to any money for existing work for any reason after the full and final payment notice is provided. Banks will often insist on a notice of full and final payment before making the final payment to the contractor. It is the contractor's job to identify any outstanding costs that have not been paid and either include them or disclaim them in the notice.

Again... scope matters. If this is a few hundred dollars it is likely not worth the fight. If it is several thousand dollars and you have a full and final payment agreement, then it may be worth fighting. It is important to remember... the contractor didn't do his job even if the work was done. He is obligated to investigate any outstanding unpaid work before agreeing to full and final payment.

And let's face it - contractors often do things like this PRECISELY because they have gotten away with it in the past.

Do you have a licensing board? I believe our state board has some teeth and can pull a GC license for some things.

This is exactly why a consult with a construction attorney would be valuable for you... and don't tell the GC you are doing it. just get your ducks in a row.

You could make a payment under protest to move things along. So you would write an email with a read receipt and say something like, "Since you requested payment for work that was performed prior to your full and final payment notice, I don't believe I owe the money. However, since you will not honor the warranty without payment I will submit the payment of $X.XX to you."

You can then sue the contractor for the return of that money after the warranty work has been completed. If you are under your small claims limit, it will likely be relatively inexpensive. This is not a great option as you are handing the contractor money and hoping that you can recover it, which there is a good chance you will not. So I would only consider this under particular circumstances, but it might work for you.

I would not give him all of the money that he is requesting. I'd do as above and add that the rest will be given after the punch list is completed. Since he does not seem to be trustworthy.

If he is really that untrustworthy, get an estimate on the warranty work from someone independent so that you at least have that information. As you can imagine, there are ways to fix things correctly and there are ways to do it cheaply.

To clarify, I have not had a final payment notice when I had bills still outstanding. But the bank was done. And the CO was done.