Domestic Construction Disputes - Defects
Domestic Construction Dispute (Defects)
We have acted mainly for the property owner in this situation, although on occasion we have also acted for the contractor.
There are some recurring themes across the cases we have been involved in:
- Contracts are made orally and not confirmed in writing (often because the builder is a friend or family)
- Substantial payments on account are made based upon estimates of cost
- Builder/contractor demands further payments based upon his own needs
- Surveyor becomes involved and values completed works at significantly less than the payments made to the builder/contractor
- Questions arise as to the builder/contractor’s financial stability/solvency
- Drift occurs with no timescale for completion of half-finished works
- Cash flow and accommodation issues arise for property owner(s)
Contractual obligations
In industry standard form contracts like the JCT, there is a period built into the contract term for remedying any identified defects. Contractors often assume that they have the right to return to remedy defects, whether or not they have entered into an industry standard contract. Where more specific terms are not agreed, however, the contractor may be in breach of contract by not carrying out the works within a reasonable time to a satisfactory standard. The property owner may be at liberty to claim damages resulting from this. We can set out the legal basis for such a claim and present it in the manner required by the courts.
Insolvency
Shoddy workmanship and financial difficulties tend to go hand-in-hand. This creates a dilemma for the owner, who believes he is throwing good money after bad, but has little prospect of recovering the money he has paid because the contractor is insolvent. He also faces a substantial extra cost to have a new contractor take on the works. We have found that a direct negotiation, or one facilitated by a mediator, has been the most productive way forward here, and we can provide the mediator or an advocate for a mediation.
Certification errors
If the property owner has used a standard industry form of contract, then a surveyor, architect or engineer may have been responsible for certifying stage payments to the contractor as the job progresses. This may give rise to a claim against the certifying professional if obvious defects were ignored. This claim is harder to prove, and is usually vigorously contested by the professional’s insurers, but they will have the money to settle the claim if it succeeds. Evidence is usually required from a professional of the same discipline as the professional against whom the claim is made, and we have both the experience and the contacts to assist with these claims.
Valuation of work
We have often become involved on the side of the property owner after the contractor, claiming further payment, has either issued court proceedings or sent a letter. If the objection to the claim is that the work is defective, we will typically involve an independent quantity surveyor to assess the value of the completed works (taking into account any defects). We will either put forward a partial defence, or defend the whole claim and bring a counterclaim, depending upon whether the quantity surveyor’s valuation is greater or less than the sum already paid. The involvement of an independent quantity surveyor, and a solicitor, usually makes the contractor more realistic in his expectations. When contractors seek to pursue their claims in court and there is a defence drafted by a solicitor based upon evidence from an independent quantity surveyor, the judge will tend to prefer the independent evidence.
Our approach
Overall, our approach is solution-focused. We realise that dealing with any legal dispute is only a part of getting a construction job done. We can and do work with everyone involved to achieve aims.
