Obligations Under Your Contract
In any successful contractual relationship, each party is generally required to abide by the terms of the contract. Before grievances can be aired, it is important to understand the scope of work that the contractor has agreed to carry out. Fundamental to the client-contractor relationship is the matter of contractual obligations, or the duties and responsibilities to be carried out by the contractor to the agreed standard of care.
In order to ensure that obligations are met, it is important to have a written record of the client’s and contractor’s contractual obligations. Client-contractor agreements are usually contained in documentation such as agreed quotations, signed contracts, purchase orders or emails. For minor works agreements, this may be just a summary of notes and instructions. However, for most contractors, this will be a matter of reference in the event of any subsequent disagreement in relation to quality and standard of work performed.
In addition, successful contractors will have regard to their own internal obligations, such as those imposed by their professional bodies. Codes of conduct, client terms of trade and price guides are viable means of ensuring high standards are met throughout the industry .
It is important to recognise that the contractor may only be under a contractual obligation to carry out particular work, to a particular standard, if it has been specifically expressed in writing. If a client is unhappy with the standard of care of the work, it is essential to identify whether the issue relates to the contract, or rather to an internal policy of the contractor. If the contractor is only an employee, recourse for any grievances may be limited to a matter of employee discipline. If the contractor is a large business, or a company, it may be that there is no legal basis to suggest that they are strictly liable for low quality work. Such liabilities may only arise if the standard has been specifically expressed to the client in writing.
This is not to say that most clients will not hold a contractor liable for under-performance of the contract. In some cases, it is possible to present a case for damages and compensation to be awarded to the client. A court will consider the whole of an architect’s performance to decide whether or not the standard of work has been satisfactory. This may, for example, involve the manner in which the client’s instructions have been complied with and the extent to which a client could be reasonably expected to provide advice on the general quality of work.
Recognizing Defective Work
The next step is identifying what work is defective. It is important to document your claims in writing and photograph the areas of concern. You should also keep notes of the timeline or history as to what happened. It is a good idea to write down the work that was done, when it was done, who did the work and when you first became aware of the problem. It is also important to repeat back information you learn to ensure you understand it correctly. It is good to do this by following up with an email. This forms a record of what you heard and how you understood that communication.
Here as some examples of potentially defective work: painter never returned to paint damaged areas in another room after drywall repairs; painted cabinets are peeling down to the wood at the hinges; floor decking is buckling; house is out of square and doors don’t close properly; tile is cracked; drain doesn’t work. I have seen many more, but you get the idea. If you have such issues, you should document them. Again, take photographs. You should then gather the photographs and organize them into a document that lists who did the work and when it was done. The photographs should be in chronological order and numbered in sets. For example, if you are going to assign a number 1, there will be four photographs and you write "Photo 1 – Based on review of contract, Joe’s Framing Company, Inc. framed house from January 1, 20XX to February 1, 20XX." As the problem progresses and/or new work is done, continue with the numbering with another set of photographs, i.e., Photo 5, etc.
Parts of a Good Complaint Letter
When writing a complaint letter to a contractor about defective work, I suggest that you include the following components:
Description of the Defects. You should include the following information when considering how to describe the defective work:
Reference to Contract. The complaint letter should reference the contract that was entered into between you and the contractor. It is also helpful to attach a copy of the contract to the complaint letter. If the defective work is not specifically addressed in the contract, you should explain what contract provision it is your contention has been violated by the defective work.
Prior Communications. Finally, many times you have already tried to communicate with the contractor in an effort to get the defective work repaired. For this reason, it is valuable to include any prior communications to the contractor about the defective work in your complaint letter.
Example Letter
The following is a sample letter you can use to write to a contractor to address defective work. The contents will need to be tailored to your particular problem, but this is a good start.
[Your Name]
[Your Address]
[City, State ZIP Code]
[Date]
[Contractor Name]
[Contractor Address]
[City, State ZIP Code]
[Project Name and Address]
[Contractor Phone/Email]
RE: (Project Name) Defective Work
Dear [insert Contractor name]:
As you are aware, I have become aware of several problems in the work you or your subcontractors performed on my house, located at [insert address]. I am attaching a list of the problems. The problems arose as follows:
[insert description of the issues. Be brief and factual – do not make any statements of opinion of fault or blame.]
I believe that these problems are due to defective workmanship. I also believe the defects were caused by [Contractor Name] and/or your subcontractors . I am therefore requesting that you correct the defective work at your expense and under your warranty obligations and custom and practice in the building industry. To date, several conversations and emails between us have failed to resolve this issue.
I expect you to contact me within fourteen (14) days of the date of this letter to discuss a schedule for the corrective work. If I do not hear from you within that time period, or if we cannot agree on the resolution of this issue, I will be forced to take further action including but not limited to, hiring an independent third party to investigate the problem and/or to perform corrective work. Please consider this letter to be a formal notice to you of my claim that you are responsible for the defects in the above referenced work.
Please provide me with a written response to this letter within fourteen (14) days. Thank you for your anticipated cooperation.
What to Do if the Problem Continues
If the contractor does not respond to your letter, you may need to/should consider filing a lawsuit. In general, you need to do this within 6 years of the last date performing work on the job. Regardless of whether the Contractor has responded to your letter about the defective work, you should document the problem to the best of your ability and be prepared to document it in Court.
After waiting some period of reasonable time, you can send a follow up letter, reiterating your position and the call for rectification. A follow up letter is especially important if the Contractor has responded with something less than a substantial response to your request.
The follow up letter should give the Contractor a deadline for his response (i.e. 10 days from the receipt of the letter). If the Contractor fails to respond with something positive, or fails to respond at all, you can prepare to file legal action against him.
Legal Issues and Guidance
For non-lawyers, the legal issues concerning how to deal with defective construction work can be quite confusing. They should seek counsel from professionals as early in the process as possible so that they can be alerted to potential matters of concern. It’s very important to put together necessary documentation as early in the process as possible.
For example, there are time deadlines (known as a statute of limitations or statute of repose) for bringing legal action and those vary depending on the type of work and the state where the work is performed. While many appear to be long (for example, Pennsylvania has a four-year statute of limitations), there are also many deadlines that are much shorter. For example, if a defect is not obvious, you may only have four months to submit a claim if you are within a condominium/start association. If it’s a latent defect, then you’ll have 12 years after substantial completion. Thus, the sooner you or your association realizes that additional action is needed, the better .
Something else to keep in mind is the potential need to file suit. If the matter is put in the hands of a lawyer, you should also understand that a lawsuit typically has to be filed within two years after discovery of the defective work. Additionally, when a lawsuit is filed, the other parties (like the contractor), are entitled to conduct what is called discovery. That means that they will be entitled to question you or even your experts under oath. So, it’s important to start documenting major and minor defects as early as possible so that you can gather the necessary information that you’ll need down the road.
Because most people don’t have the knowledge or experience to do this consistently, you should seek the advice of a legal professional as soon as you think you have a matter that will escalate. If you do it early enough, that lawyer may be able to guide you through the process without ever having to go to court.