Nearly all public works projects are
done on terms set by the public agency. The contractor has little or no say in the
matter. It’s only on smaller residential and commercial jobs that contractors get
to shape the agreement – offer terms likely to save the day if the job goes bad.
It should be obvious: Contractors with
an opportunity to write their own agreements should jump at the chance. Yet, some
don’t. Here’s an example:
Jennifer English needed some improvements
to her home in Wallingford, Connecticut. Jonathan Ohr of
Major League Builders agreed to do the work for a flat $50,000.
There was no written agreement. According to Judge Abrams, “Mr. Ohr was not in the
practice of entering into written contracts with his home improvement customers.”
You can probably guess what happened next. The case is English v. Ohr, 2018 Conn.
Super. LEXIS 5898.
With $46,800 paid and work still to be
done, Ms. English locked her contractor off the site. The court didn’t explain what
went wrong on the job. But the judge agreed that: (1) Mr. Ohr could have completed
the job if he had access to the site. (2) By denying access, Ms. English committed
an anticipatory breach of the verbal agreement.
Normally, that would entitle the contractor
to damages and probably attorney fees. But remember, there was no written contract
for this job. And that was a problem. Connecticut is one of the 31 states and the
District of Columbia that require a written contract for residential work: AR, AZ,
CA, CT, DC, DE, HI, IL, IN, KY, LA, MA, MD, ME, MI, MS, ND, NH, NJ, NV, NY, OH,
OR, PA, RI, TN, TX, VA, VT, WI, WV and WY.
It Gets Worse
Under Connecticut’s Home Improvement
Act, doing work without a contract is an unfair trade practice. That authorized
Judge Abrams to award punitive damages against both Mr. Ohr and Major League Builders.
The judge didn’t do that. But the court’s opinion leaves no doubt about who was
at fault in this dispute. If Ohr had a signed contract:
[T]he parties would have had a concrete
memorialization of the scope of the project that would not have allowed for inconsistent
expectations. As a result, the project could have been completed without significant
incident and this litigation avoided.
In essence, the lawsuit was Ohr’s fault.
So Ohr was ordered to pay the reasonable attorney fees of Ms. English.
Notice how absence of a written contract
on the English job changed everything:
- According to Judge Abrams, there was no true agreement on what the job required.
- Ohr didn’t collect the last $3,200 due under his oral agreement.
- Ohr didn’t have the protection any good contract would have provided.
- Ohr had to pay both his own attorney fees and the fees of Ms. English.
Jonathan Ohr isn’t the only contractor
to do business on a handshake. If that’s how you operate, have a look at Construction Contract Writer. Before you start any job, use CCW to write a construction contract
that’s perfectly legal in any state where you build or remodel. The trial version
is free.
