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Re: Problem with builder
Thanks, a very useful reply, lots for me to think about.
The main thing I will need to look into is how vital it is to have a separate surveyor's report.
What about the witness statement from the architect? Is there a particular form this should take, are there guidelines, what should it include? I have emails from the architect, but not a witness statement. Should I pay him for this?
Originally posted by Ripped-Off
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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.
I did not terminate the contract, he did. He walked out, but is claiming we mutually agreed to end the contract.
In your text you state that he walked off the job because you refused to pay him for:
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.
He claims I owe him £2k. I'm not sure yet how much I think he owes me, but I think it will be in the region of £10k. I need to get written quotes to fix the work and complete the job as per the drawings and building control satisfaction. Are you saying I can only claim a maximum of £2k as that is all he is claiming? This doesn't make sense.
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.
Good, makes sense.
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.
Easy to say in theory, but once he had started he then demanded money in advance. He told me work was complete,, and I did not know the inspector would condemn it. Lesson learned, I will never take a builder's word again without confirmation from building control.
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.
I listed the defects, and told him I would have to get quotes. I also explained why I do not believe I owe him the sums he is claiming for me. Our payment schedule stated payment on completion of each stage. The roof is not completed, so no payment is due until completion, for example. Also, he has made up the extra brickwork as there is nothing in the contract or any subsequent emails about this. The lintel has not been agreed by building control, so it would be foolish for me to pay for this until it is changed to the type specified by the council.
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.
And I wonder if this is why he is now claiming we terminated the contract by mutual agreement? I did not agree to terminate, but I could not force him to continue. He said he would sue me for the money, but has made no efforts to do this, or send a letter before action. He said he had a solicitor working for him, but I'm not sure I believe this. The reason he gave at the time for walking off is that he no longer trusts me as I called building control in. However, he had acted recklessly in knocking through a supporting wall without checking for adequate support first, when the drawings and his contract both stated he would check first. Then there was a panic while he grabbed a lintel and put it in, but the inspector won't accept it. He gets very emotional, and behaved like a spoilt child, bleating and whining about how good his work is, but the council is wrong, the drawings are wrong and also I'm wrong! Think of a two-year-old having a tantrum and you'll get the picture.
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.
I've written him two letters before action, but have not yet given him a figure as I don't have quotes yet. I suspect, logically, I will need to send him a third letter once I have figures to give him a chance to know what the damages will be? He might reconsider re-doing the work himself once he has figures?
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.
Why do you say 'may' rather than 'will' (assuming I win in court, of course). I've been watching a few Judge Judy's, and sometimes she pays quotations, and sometimes she says the plaintiff will have to come back once they have paid the bill and incurred the damage. Maybe different rules for different USA states? What's the rule in the UK?
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.
Yes, it will be to complete as per the drawing specification. For example, the drawing states an LG steel lintel, and the builder has used a cheaper concrete lintel which will have to be changed.
You must prove that what you have paid to date is equal to what the work is worth.
I've paid more because some of the work has been condemned, and some is not completed.
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.
OK, I have the email from the 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.
So do I need to get a separate surveyor's report as well? I moved house last year, and I know these cost over £1k.
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.
I did not terminate the contract, he did. He walked out, but is claiming we mutually agreed to end the contract.
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.
- Correct, plus some other brickwork he claims he did on the gable ends, but there is nothing there except thin air. There is nothing in writing about this so-called extra brickwork, and I can assure you he put everything in writing, especially where it involved extra money. I think of this as the 'imaginary' brickwork! Finally, he wants money for the roof timbers, but this bears no relation to the shape of the roof on the drawings, and the inspector says it's not properly supported. I suspect this will have to come down, but I'm not sure at this stage. It is very knotty, cheap-looking wood which I suspect is pine, and we had a no pine agreement in the contract as I hate it.
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.
He claims I owe him £2k. I'm not sure yet how much I think he owes me, but I think it will be in the region of £10k. I need to get written quotes to fix the work and complete the job as per the drawings and building control satisfaction. Are you saying I can only claim a maximum of £2k as that is all he is claiming? This doesn't make sense.
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.
Good, makes sense.
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.
Easy to say in theory, but once he had started he then demanded money in advance. He told me work was complete,, and I did not know the inspector would condemn it. Lesson learned, I will never take a builder's word again without confirmation from building control.
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.
I listed the defects, and told him I would have to get quotes. I also explained why I do not believe I owe him the sums he is claiming for me. Our payment schedule stated payment on completion of each stage. The roof is not completed, so no payment is due until completion, for example. Also, he has made up the extra brickwork as there is nothing in the contract or any subsequent emails about this. The lintel has not been agreed by building control, so it would be foolish for me to pay for this until it is changed to the type specified by the council.
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.
And I wonder if this is why he is now claiming we terminated the contract by mutual agreement? I did not agree to terminate, but I could not force him to continue. He said he would sue me for the money, but has made no efforts to do this, or send a letter before action. He said he had a solicitor working for him, but I'm not sure I believe this. The reason he gave at the time for walking off is that he no longer trusts me as I called building control in. However, he had acted recklessly in knocking through a supporting wall without checking for adequate support first, when the drawings and his contract both stated he would check first. Then there was a panic while he grabbed a lintel and put it in, but the inspector won't accept it. He gets very emotional, and behaved like a spoilt child, bleating and whining about how good his work is, but the council is wrong, the drawings are wrong and also I'm wrong! Think of a two-year-old having a tantrum and you'll get the picture.
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.
I've written him two letters before action, but have not yet given him a figure as I don't have quotes yet. I suspect, logically, I will need to send him a third letter once I have figures to give him a chance to know what the damages will be? He might reconsider re-doing the work himself once he has figures?
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.
Why do you say 'may' rather than 'will' (assuming I win in court, of course). I've been watching a few Judge Judy's, and sometimes she pays quotations, and sometimes she says the plaintiff will have to come back once they have paid the bill and incurred the damage. Maybe different rules for different USA states? What's the rule in the UK?
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.
Yes, it will be to complete as per the drawing specification. For example, the drawing states an LG steel lintel, and the builder has used a cheaper concrete lintel which will have to be changed.
You must prove that what you have paid to date is equal to what the work is worth.
I've paid more because some of the work has been condemned, and some is not completed.
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.
OK, I have the email from the 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.
So do I need to get a separate surveyor's report as well? I moved house last year, and I know these cost over £1k.
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.
The main thing I will need to look into is how vital it is to have a separate surveyor's report.
What about the witness statement from the architect? Is there a particular form this should take, are there guidelines, what should it include? I have emails from the architect, but not a witness statement. Should I pay him for this?
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