Problem with builder

[HannahHerts]

Hi everyone, I'm so glad I found this forum.

A builder began work on a small extension (porch and wet room at the front of the house) for me at the end of April this year. To cut a long story short, the building inspector came to look at the work in mid May and has highlighted a number of areas he's not happy with that need to be re-worked. Also, someone else pointed out to me (I had not noticed) that the apex of the gable end is not central and the porch will be noticeably wider on side than the other. The architect's drawings show it at symmetrical.

The builder walked off the job as he did not agree with the building inspector's comments. The architect agrees with the building inspector.

I spoke to Citizens Advice, and wrote a letter before action, citing the Consumer Rights Act 2015. I invited the builder to return and re-do the work. He refused. I then wrote again following guidance from CA, and got the same response.

Purely by chance, I met another builder who used to my builder's employer. He had a look and spotted another problem, namely that there was no drainage for the wet room. The council has not yet inspect the drains.

I have asked my builder if he belongs to any ADR scheme, but he refuses to reply. He also failed to collect the first recorded delivery letter I sent (but I had also sent it with proof of postage, and he replied by email so I know he got it).

It looks like I might need to take this to court.

The builder is claiming I owe him £2,000, but this is not true as I have paid him for work that does not meet the required standard and will need to be re-worked, and I have also paid him in advance for work he has not completed. He wants me to pay for timbers for the new roof which the council will not sign off, but I don't think I should pay this. He is also adding another £1,000 from nowhere for extra brick work (even though on 7 May he told me all brick work was completed, so I had to pay the amount in the contract, which I did). He claims there is extra brick work at the gable ends, but there is nothing there! Can he just add extra amounts that are not in the contract?

We have a written contract and all payments were made via bank transfer. He is a sole trader and has a trading name, and his trading name is on my bank statements, showing the payments.

When I got quotes, his was the middle. He was recommended by the architect, and I also followed up customer references, and everything checked out OK. I believed he was an experienced general builder (because he told me he was) but I recently discovered he is a start-up business and has only been going 18 months on his own. Prior to this he was a plasterer, and I understand a good one.


1. whose name do I put on the court papers, his name or his trading name, or both?

2. what evidence do I need? I have an email from the council inspector (which the builder will not accept), and the drawings showing what I asked him to build. I will also take some photos. Can I submit a video to the court? I also have the letters before action and his emailed responses, as well as text messages. He is being rather childish in his replies, which I think will go in my favour. Will the court accept the email from the council as evidence the work did not use reasonable care and skill? Also, the deviation from the architect's drawings is bizarre and the porch will look ridiculous if I do not have it changed.

3. I went today to sit in and observe a couple of small claims cases. I did not see anyone taking an oath or making an affirmation - would this have happened before the parties entered the room, or is it not necessary in a civil court?

4. I'm trying to get other quotes which is proving difficult. Firstly, there is a high demand for builders. Secondly, I've been told by one that they don't like trying to fix another builder's work as they don't know what other problems they might find once they start.:tinysmile_cry_t: Just as he was saying this, he spotted that no drainage had been put in! How can I get another builder to want to fix my extension?

5. I'm not sure yet whether the sum I might have lost because of his poor work will be under or over £10k. If it is just over, can I restrict my claim to £10k to avoid having to get solicitors involved?

6. When he was removing the old extension, his sub-contractor knocked down (by accident) a small wall used to hide the bins. He quoted me £250 to rebuild this as he doesn't think it's his responsibility. Should I add this to the claim? The wall was rather old, but it did not fall down by itself, it got knocked by a small machine that was being used to dig out concrete.

7. Presumably I work out the amount I need to claim by getting other quotes, and working out the difference between what I would have paid my old builder, and what I need to pay the new one to finish the job, including correcting mistakes, so the council is happy and the work matches the architect's drawings?

8. I have asked the builder for pictures he told me he had took as the work went on as I particularly want to see for sure whether or not there is any drainage, but he has refused. I have also asked the architect to see if he can get these, but the builder will not respond to him. He is being very childish and claiming that I owe him money (which I do not).

So many other questions, I'm not sure where to start! :tinysmile_cry_t:

Has anyone else successfully got money back from a builder who walked out?

Also, he did not leave me a cooling off notice, so technically he could not have sued me if I had not paid him anything. However, the payments were staged, and I paid when he told me he had completed each stage.

Thanks in advance to anyone who can help me out with any of these questions.

[Ripped-Off]

Re: Problem with builder

Without knowing the terms of your contract or when things occured I can only answer with reference to the common law.

Can he just add extra amounts that are not in the contract?

That depends. If the work was shown on the drawings or could reasonably be inferred from the drawings then no he can't. Normally, contracts contain a mechanism whereby additional works can be instructed by you (these are called 'variations'). But if you did not instruct him then the short is answer is no, he has no right to additional payment.

whose name do I put on the court papers, his name or his trading name, or both

His name followed by 'trading as' and his company name.

what evidence do I need?

That depends on what you are trying to achieve. The only evidence that you need right now is his refusal to return to complete the works. That is what's called a repudiatory breach of contract. You would have to write to him accepting his repudiation and then you can terminate the contract and bring in someone else to finish the job. You cannot use another builder when you already have a contract with one, that would give him an opportunity to sue you for a breach of contract.

Repudiation is a tricky legal subject and can go horribly wrong if not done properly.

I recently did a post on builders here.....
http://legalbeagles.info/forums/show...ht=#post654061

[HannahHerts]

Re: Problem with builder

Thanks, Ripped-off.

He keeps claiming (by email) that we terminated the contract by mutual agreement, which is not true as I did not want him to walk off. I tried to get him to stay but he wouldn't. He claims this is because he believes I owe him money and if I pay he will re-write the contract and come back.

There was nothing about variations in the contract. He wrote the contract himself, and it was fairly short and to the point about what was included and the costs and payment schedule.

I'll take a look at your link - thanks again.

[wales01man]

Re: Problem with builder

Where on earth did you find this waster was it recommendation by someone or one of those websites seems he may be a good plasterer but lousy at anything else.

[HannahHerts]

Re: Problem with builder

I'm trying to get other quotes st the moment - presumably this is OK and I'm not repudiating the contract by doing this?

[Ripped-Off]

Re: Problem with builder

presumably this is OK and I'm not repudiating the contract by doing this?

Yes that is okay. But the minute the new builder starts work for you on the same contract as the old one then that could be problematic.

I think the remedy you seek is either specific performance (where the court forces the builder to complete the work) but this would be a rare outcome indeed, or damages for non performance which is the likely outcome.

Get the quotes as you have stated, write to your old builder and tell him that you believe that he is breaching the contract by failing to return to work. Non payment is not always a fundamental breach whereas non performance usually is. Tell him that you are prepared to negotiate a settlement with him or better still involve a mediator. In any event, give him 14 days to resume work, and advise him that a failure to do so will be treated as his repudiation of the contract which will give you the right to terminate the contract, to employ others to complete the work and recover your damages from him. After the 14 days you either have to formally terminate the contract or affirm it. In either case you are entitled to recover damages.

Be very careful though, because you cannot terminate the contract if the reason for him walking off site was as a result of a fundamental breach by you or someone for which you are responsible. In addition, it can depend on the length of time from the breach to the point of termination.

Damages have to be proven so keep all invoices and receipts as you will want to recover the cost difference later.

[HannahHerts]

Re: Problem with builder

Yes that is okay. But the minute the new builder starts work for you on the same contract as the old one then that could be problematic.

I think the remedy you seek is either specific performance (where the court forces the builder to complete the work) but this would be a rare outcome indeed, or damages for non performance which is the likely outcome.

That is what I've been trying to do with help from Citizens' Advice, but the builder refuses to return. I think I may need to give him one more chance. My issue then is about the court side, which CA does not help with.

Get the quotes as you have stated, write to your old builder and tell him that you believe that he is breaching the contract by failing to return to work. Non payment is not always a fundamental breach whereas non performance usually is. Tell him that you are prepared to negotiate a settlement with him or better still involve a mediator.

I've asked him about mediation twice, but he does not address this point. I have identified a mediation company that could be used if he will agree However, I don't think he will agree as he's very emotional, and he won't accept there is anything wrong with his work.

In any event, give him 14 days to resume work, and advise him that a failure to do so will be treated as his repudiation of the contract which will give you the right to terminate the contract, to employ others to complete the work and recover your damages from him. After the 14 days you either have to formally terminate the contract or affirm it. In either case you are entitled to recover damages.

Yup, working on this with CA but I'm now planning ahead and trying to find out about the court stuff because I suspect that's where we're headed. He did say that he was taking me to court for non-payment, but I've not had anything about this (letter before action). I'm now the one pursuing him, as I think it will be in the region of £10k.

Be very careful though, because you cannot terminate the contract if the reason for him walking off site was as a result of a fundamental breach by you or someone for which you are responsible. In addition, it can depend on the length of time from the breach to the point of termination,

I don't think I've done anything to breach the contract. He claims he's not coming back because I owe him £2k, but I don't agree with this. I'm not paying for a lintel that building inspector says should be changed, and I've already paid him for plastering that is not completed and for brick work that will need to be knocked down.

Damages have to be proven so keep all invoices and receipts as you will want to recover the cost difference later.

Yes, but what exactly can I claim? Can I only claim it after I have paid it to the new builder? Can I put in my claim to the court when I have quotes and get them to pay on the basis of the quotes? I am looking for specific detail on the court issues.

[wales01man]

Re: Problem with builder

Once you have offered to allow him to put the work right and finish the job and he refuses you should get a report on the state of the work done and a quote to rectify this and finish it to the standard one would expect and to building regs you can put cost of this in the claim. Be sure that if you obtain a CCJ he has the ability to pay or you will be throwing good money after bad

[HannahHerts]

Re: Problem with builder

Once you have offered to allow him to put the work right and finish the job and he refuses you should get a report on the state of the work done and a quote to rectify this and finish it to the standard one would expect and to building regs you can put cost of this in the claim. Be sure that if you obtain a CCJ he has the ability to pay or you will be throwing good money after bad

I have an email from the building inspector showing what is wrong, and anyone can see that the building does not look like the drawings. Is this not enough?

What type of person would do a report on the state of the work? How much would this cost?

[wales01man]

Re: Problem with builder

The Architect who recommended him maybe was he the one who did the plans and specs

[HannahHerts]

Re: Problem with builder

yes. strictly speaking he's an architectural technician. would this be OK if he's willing? Is the building inspector's findings not enough?

[wales01man]

Re: Problem with builder

He would be a start if he did drawings he could see if the job was done properly Building regs cover what must be done nothing to do with other aspects of the jobanything covered in regs should be signed off after inspection.

[HannahHerts]

Re: Problem with builder

I'm still trying to get my head around this, particularly the part about repudiating the contract.

Would there be a reason why the builder is claiming that we mutually agreed to terminate the contract? Obviously I did not and my behaviour in the letters I've written show that I did not agree this, but he keeps emailing me saying to stop raising issues as we mutually agreed to terminate the contract. He says he took legal advice (but I'm not sure whether or not he did, his emails to me are not of the general tone you would expect from someone who is acting reasonably).

[HannahHerts]

Re: Problem with builder

He would be a start if he did drawings he could see if the job was done properly Building regs cover what must be done nothing to do with other aspects of the jobanything covered in regs should be signed off after inspection.

But the problem arose when the inspector would not accept the work.

The architect has already had a look at the work (he lives around the corner) and agrees with the inspector.

[Ripped-Off]

Re: Problem with builder

If you terminate the contract and you were wrong to do so then the builder can sue you for not allowing him to perform his contract for you.

In your text you state that he walked off the job because you refused to pay him for:

• a lintel that the building inspector says should be changed
• plastering that is not completed and
• for brick work that will need to be knocked down

Now, the common law of set-off allows you to offset any costs that you have incurred against any money that you owe. However, a set-off can never exceed the amount owing, otherwise it becomes a counterclaim. Furthermore, the law of abatement allows you to reduce payments for incomplete work, defective work or to correct an overpayment. The saying is...one cannot owe something that is not due.

What should have happened is that you should have paid him for the work that he has done, less any amounts that you are entitled to retain through set-off and abatement. However, these figures should be calculable. If that means that the payment due is zero, so be it, as long as you have calculated the amount of the payment. To simply say 'I am not paying you' without providing any substantiation could be viewed as a breach of contract. If, however, full substantiation has been provided then the builder has a remedy of suing you for the money that he believes is owing, he cannot simply walk off site. To do so would in itself amount to a breach of contract.

Supposing that you have not breached the contract from your side, then it must follow that he has breached it from his. That gives you the opportunity to terminate the contract, seek damages and any losses incurred. One aspect of your loss will be the extra cost, if any, of employing someone to complete the works.

You don't have to have incurred the cost beforehand. As long as you can quantify the damages/loss that you will suffer as a result the of non performance, the Court may allow your claim. For example, Contract Value = £50k, paid = £30k, cost to complete = £30k, loss = £10k. This is based on you mitigating your losses to the full extent. You can't simply bring in a world class builder and expect your builder to bear the difference in cost.

You must prove that what you have paid to date is equal to what the work is worth. The building inspector's report should suffice for defects, after all, even if you employed a building surveyor and he disagreed with the building inspector, you are still going to either have to pay to have the building inspector's decision reviewed or pay to have the work corrected to the satisfaction of the building inspector. However, the building surveyor's report should concur with the building inspector's decision and that will be good evidence, as well as a witness statement from the architect.

Finally. as for mutual termination, you say that you have numerous records requesting that builder return to complete. I would say that is a good start to show that neither had discharged the other from their respective obligations. It is for the builder to prove mutual discharge, not you. He will no doubt rely on this as a defence to a claim.