“You’re Fired. Get Off My Property”

Have you heard those words from an owner? Last week I got a call from a contractor who had been told exactly that. He still had tools and equipment on the job. He was owed money. His crew and subs expected to be paid. Now what?

A contractor terminated for good cause could be liable for both the extra cost of finishing the job and the cost of fixing everything the owner didn’t like about the original work.

What would you do?

First, understand there is only one cheap, quick solution in a case like this: a heavy dose of common sense. An owner who orders a contractor off the job has grievances, either real or imagined. Offer to resolve every one of those issues. Then make that offer in writing. Save a copy for your file. An owner who refuses your offer to continue work on the owner’s terms has breached the contract. If the case ends up in court, you’re the one who acted reasonably. Documents in your file will prove that.

If common sense doesn’t help, the law has answers. An owner who orders a contractor off the job without good cause has committed a breach of contract. The contractor is entitled to payment for work completed plus lost profit. But an owner's breach of contract is excused if the contractor was the first to commit a material breach of the agreement. A material breach is a question of fact, usually decided by a jury.

The courts could take years to decide who committed the first material breach. Legal fees in a case like that will be many thousands.

Better Choices

Arbitrate. If your contract requires arbitration, do exactly what your contract requires. If you have agreed to arbitrate, no court will hear the dispute. Mobile mediators and arbitrators are available in nearly every major city. Some will meet on the job site and provide a written decision in a matter of days. That decision is fully enforceable, just like a judgment in court.

Record a lien on the property. Lien rights are entirely separate from contract rights. A recorded lien gives you the right to foreclose. But watch four points: (1) Where a license is required, unlicensed contractors don’t have lien rights. (2) If the construction site is the primary residence of the owner, there are no lien rights if the owner didn’t get the Federal 3-day right to cancel form. (3) Your lien must be recorded promptly after work stops. (4) You have a limited time to bring a foreclosure suit after recording a lien. Wait too long and your lien rights are gone.

Look to your contract. Many construction contracts give either the owner or the contractor or both the right to terminate – either for cause or without cause. If your contract has a termination clause, contract terms will explain who has to do what after termination.

A good contract is your best protection against an unreasonable owner. The best contract drafting tool I know is Construction Contract Writer. The trial version is free.

Short vs. Long Construction Contracts

Pick up a contract for any good-sized commercial or industrial project and you’ll be holding 50 to 100 pages. I’ve never seen a contract for a significant public works project shorter than 50 pages. Even the most popular A.I.A. model contract (A201) is 40 pages.

Why so long? That’s easy. Both sides are trying to avoid surprises – and lawsuits. One-size-fits-all construction contracts pave the way to the courthouse steps. A good contract resolves disputes before they happen. Cover all the issues precisely in your contract. If the unexpected happens, let your contract do the talking.

“OK”, you say. “But I’ve been doing business for years on a 2-pager and never had a problem.” I don’t doubt that. But it’s like driving on bald tires. Not recommended.

I’ll let Ed Stewart of Admiral Construction in Cocoa, FL explain why he uses long contracts:

Years ago, for my 14 hours of continuing ed. for Florida contractors, I took a course on construction law taught by a construction attorney. The attorney asked the class of about 75 contractors, “How many have 2 or more pages in your contract?” Just about all hands went up. Then he said, “As I count up, drop your hand when I get to your number of pages.” At 12, my hand was 2nd to last. At 15, my hand was still up, the only one in the class. He asked me, “How many pages?” I said, "Just finished writing an 18-page contract." The class laughed. Someone shouted "Who in the hell is going to sign an 18-page contract?" The attorney's reply was, "All you guys that have under 10 pages are setting yourself up for a major lawsuit. The contractor that has 18 pages is probably well protected." The attorney asked to see me after class. When class was over, the attorney asked me, “Why so many pages?” I said "Craftsman Contract Writer". He said that was an excellent choice, well worth the purchase price. To date, Contract Writer has saved me many times, although I add more detail to my contracts. Just finished an 18-page contract, and a few weeks before, a 28-pager. So far, I’ve never had a contract turned down for being too long.

Contracts on Steroids

No matter how you feel about short vs. long contracts, include everything state law requires. For home improvement work, a two-page contract you found on the Web is a poor choice. In California, for example, every home improvement contract needs 32 distinct notices and disclosures – a minimum of 14 pages. There’s no (legal) way to avoid that.

Finally, if your contracts are short because you’ve run out of things to say, have a look at Construction Contract Writer. You’ll find dozens of good ways to protect yourself – grouped into 24 categories, from defining scope of the work to completion and final payment. Just answer the questions to write contracts – either short or long – that fit your jobs precisely.

Bad Faith Contracting

Nearly every state requires notices and disclosures in construction contracts, especially residential contracts. What’s required varies from state to state. But most states require at least several of the following:

• A signed and dated written contract
• Contractor license or registration number
• Date when work will start and be finished
• Payment schedule
• Mechanics’ lien warning
• A statement about insurance or bonding
• Three-day right to cancel

What happens if your contract omits one of these notices and disclosures? In most states, that’s an invalid contract. It’s enforceable against the contractor but almost certainly not binding on the owner. A recent Connecticut court decision makes the point: Aqua-Scapes sued Mason to collect final payment on a pool job. Mason refused to pay, claiming the contract didn’t comply with Connecticut law. The court (2014 Conn. Super. LEXIS 3819) ruled for Mason:

"There is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor, in learning that the contract is invalid, then exercising their right to repudiate it."

It’s easy to make Aqua-Scapes’ mistake in a construction contract. What’s required by state law can vary with the contract price, the type of work (residential, commercial or insured loss), where the contract was signed (on site or in an office), the number of payments, when payments are due and even the age of the owner. In the Aqua-Scapes case, the contract was void because it:

• Omitted the contractor’s registration number
• Wasn’t signed by the owner. The owner gave his OK by email.
• Didn’t include starting and completion dates
• Omitted a notice of the owner’s right to cancel

Take this as black letter law: If your contract is a dud, the owner wins every dispute. In most states, you’ll have to jump through legal hoops to collect anything the owner doesn’t want to pay.

Bad Faith Contracts

Now go one step further. Suppose the owner spots a defect in your contract right from the start. Something required by state law simply isn’t there. The owner knows you’ll have no right to collect if there’s a dispute. But the owner signs anyhow, saying nothing about the defect – in effect, laying a trap. Heads, the owner wins. Tails, you flip again.

Oops! That owner has given the contractor what’s called a bad faith defense. The owner knew the contractor had no right to collect and went ahead anyhow. That’s bad faith. But proving it won’t be easy. As quoted in the Aqua-Scapes decision:

“Bad faith of a nature to preclude enforcement of [The Home Improvement Act] must involve ‘actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive’.”

Aqual-Scapes couldn’t meet that challenge. You shouldn’t have to. There’s a better way. Use contracts that comply precisely with the law in your state, no matter the type of job. The best way to protect yourself is with Construction Contract Writer. The trial version is free.

Indemnity: Contractors Beware

You’ll see the words “defend, indemnify and hold harmless” in many construction contracts. That’s an indemnity clause – and it can be toxic for contractors. I’ll explain.

One common form of indemnity gives an owner or a designer the right to recover from a contractor for every loss on the job, even losses caused 100% by the owner or a designer. Is it fair to make a contractor cover losses like that?

Nearly all states have said “no.” They void what’s called broad form indemnity agreements: anything in a contract which would require a contractor to cover a loss caused 100% by the owner or designer. That makes perfect sense. Responsibility for a loss should rest with the party best able to control the loss.

Here’s a state-by-state rundown of the type of indemnity agreements allowed in each state.

Broad form – A contract can require indemnity of the owner or designer for all claims arising out of the work, even losses caused 100% by the owner or designer: AL, DC, FL (private jobs only), ME, ND, PA (except home improvement), VT, WI, WY.

Intermediate form – A contractor can be required to indemnify the owner or designer for any loss caused either in whole or in part by either the contractor or a subcontractor: AK, AR, GA, HI, ID, IN, LA, MA, MD, MI, NJ, SC, SD, TN, VA, WV.

Limited form – A contractor is responsible only for losses caused by the contractor: AZ, CA, CO, CT, DE, FL (public works only), IA, IL, KS, KY, MN, MO, MS, MT, NC, NE, NH, NM, NV (as of 3/15), NY, OH, OK, OR, PA (home improvement), RI, TX, UT, WA

How to Protect Yourself

The best option is to keep indemnity out of your contracts. Without an indemnity clause in your contract, you’re liable only for your own mistakes. If the owner insists on an indemnity contract, OK. But add some extra protection. All of the following make perfect sense – at least to contractors:

• Exclude indemnification for design errors. Those are clearly not your problem.
• Cap indemnity at your insurance policy limits. Without this cap, you could be liable for any amount, even if not covered by insurance.
• Limit your liability as an employer to coverage under workers compensation law. Workers comp insurance insulates you from suit by an employee injured on the job. But nothing prevents an injured employee from suing the property owner. If your contract requires indemnity for the owner’s losses, you could once again be liable for injury to your employee.
• Add the owner as an additional insured on your liability policy. This is restricted in some states. But it’s a good way to avoid indemnity claims by an owner.
• Require indemnity by your subs. If the owner makes you responsible for every loss, OK. Two can play that game. Put a similar indemnity clause in your subcontracts. That makes subs liable for your losses, regardless of the cause. Obviously, this makes no sense. But it’s common on large industrial and commercial jobs – where allowed by state law.

Be aware: I’ve painted with a broad brush. Most states have exceptions and exclusions. There’s plenty more to know. The best way to protect yourself is with Construction Contract Writer. The trial version is free.

Promises Made and Broken

Mike and Cheryl Ording had a leaky basement in their Milwaukee home. A salesman for Everdry Waterproofing offered to solve the problem. According to the Ordings, the salesman claimed they “would never have water in their basement again” if Everdry did the waterproofing. Reassured, the Ordings signed the contract. 

A few weeks after work was done, the Ordings noticed water in their basement. They called Everdry. Before Everdry showed up, a storm flooded the basement five feet deep. Everdry offered to lend the Ordings a pump but insisted that any damage was not their problem. The Ordings sued.

At trial, the jury awarded the Ordings $7,000 in damages. That was doubled to $14,000 under Wisconsin’s Home Improvement Practices Act. A violation of HIPA is also an unfair trade practice which allowed the Ordings to collect their attorney fees, $41,000 in this case. So the contractor was on the hook for $55,000. But that was only the beginning. Everdry’s attorney fees were $118,896. That made the salesman’s promise a very expensive mistake.

Now notice this. The award wasn’t for breach of warranty or breach of contract or negligence in doing the work. Instead, the jury found that Everdry made a false oral promise when selling the job – the Ordings “would never have water in their basement again.”

Protect Yourself

How many times have you made a promise when selling a job? There’s risk every time you forecast results such as durability, matching colors or textures, performance, a completion date – anything that raises expectations or could be misinterpreted. Let the contract, the plans and the specs describe your task. That’s step one.

Step two is known as a contract integration clause. Here’s a sample taken word-for-word from Craftsman's Construction Contract Writer:

This contract is the entire agreement and constitutes a complete integration of all understandings between Contractor and Owner on the subject of the Project. This Contract supersedes all prior negotiations, representations and agreements, whether written or oral. 

An integration clause makes good sense on two levels. First, integration voids statements made before the contract was signed. Those statements aren't part of the deal. Second, courts like integration. Interpreting any agreement is easier when there’s just one contract, not a list of oral promises and side agreements.  

Would the jury’s decision have been different if the Everdry contract had an integration clause? I think we know the answer to that question. The Everdry contract did have an integration clause. Unfortunately for Everdry, their counsel didn’t raise the issue until after the jury verdict – too late in the opinion of the appellate court (2015 Wisc. App. LEXIS 275, April 14, 2015).

A Simple Suggestion

Are your contracts as good as your work on site? It’s easy to write iron-clad contracts fully enforceable under the law of your state. Get Construction Contract Writer. The trial version is free.

Wisconsin’s Home Improvement Surprise

A fire on September 7, 2009 did serious damage to the home of David and Carol Butler. The Butlers selected Purofirst of Milwaukee to do the repair work and signed an "Authorization" form provided by Purofirst. The Butlers moved out and Purofirst went to work. 

Six months later, work was done and the Butlers moved back in. Purofirst suggested writing up a punch list of any defects the Butlers found. Purofirst fixed some items on the Butlers' punch list but insisted others were not their problem. The Butlers didn’t like that. They refused to make the final payment. Purofirst filed suit to collect.

Does this sound familiar? If you’re going to have a collection problem, it’s most likely over final payment. Until that time, the owner is eager to keep the job moving. Any delay in payment would delay completion and the owner’s use of the property. But when the job is done, the owner holds all the cards.

So the dispute over the Butler job landed on desks at two law firms. When that happens, focus will always be on the contract. What does the contract say? Does it comply with the law? This is no time for a surprise, which is exactly what Purofirst had coming.

Law in nearly all states sets standards for residential construction contracts, especially home improvement contracts. What’s required and the penalties imposed vary by state. In Wisconsin, the law is the Home Improvement Practices Act, Wisconsin Administrative Code ATCP (Agriculture Trade and Consumer Protection) § 110.01 to § 110.08. A home improvement contract has to be in writing and has to cover eight specific points, including a full description of the work. Doing work on an illegal home improvement contract in Wisconsin can earn the contractor a fine of up to $5,000 and as much as a year in jail. Violation also gives an owner the right to recover twice the amount of the loss plus reasonable attorney fees. And that’s what the Butlers wanted; twice their loss plus attorney fees.

The trial court found Purofirst had violated ATCP § 110.05 by failing to put all contract terms in writing. That opened the door for the Butlers. Purofirst didn’t collect anything in their suit. Instead, the trial court awarded the Butlers $29,407. Then the trial court doubled the award under Wisconsin Statutes § 100.20(5) and added attorney fees. That wasn’t exactly what Purofirst expected when they filed suit to collect for work completed.

Purofirst appealed the trial court judgment. Last month, a Wisconsin Court of Appeals gave Purofirst some relief (2015 Wisc. App. LEXIS 117). On technical grounds, the appellate court reversed the trial court's grant of attorney's fees and the doubling of damages. But the award of $29,407 stands.

Avoid The Purofirst Surprise

There was a time when builders could do residential work on a generic contract form -- or even on handshake. No longer. Like Purofirst, you’ve got a surprise in store if your contracts don’t comply with state and federal law. Fortunately, it’s easy to write perfectly legal construction contracts for any state. Get ConstructionContract Writer. The trial version is free. 

Pay-If-Paid in 50 States

Subs and suppliers expect to be paid on time. That’s a problem when an owner is slow to pay the prime contractor. So what are you supposed to do about slow-pay? The obvious answer is a “pay-if-paid” clause in your subcontracts. With “pay-if-paid,” a prime contractor doesn’t have to pay subs until paid by the owner. That’s legal in about half of all states. If you’ve never used a “pay-if-paid” contract clause, keep reading. There’s a lot to learn.

True “Pay-If-Paid”

“Pay-if-paid” comes in two flavors. True “pay-if-paid” means the prime contractor never has to pay a sub if the owner never pays the prime. Of course, subs and suppliers can still use the lien law to collect from the owner. But the prime contractor has no obligation to pay subs until the owner pays. That works in 24 states: AL, AR, AZ, CO, CT, DC, FL, GA, ID, KS, LA, MD, MI, MO, NE, NH, NJ, OH, OR, PA, RI, TX, VA, and WV. True “pay-if-paid” requires very specific contract language, such as:

Contractor may withhold payment for work done by Subcontractor (including retainage) until Contractor has been paid for that work by Owner. Payment by Owner is a condition precedent to payment of Subcontractor for work completed. Subcontractor acknowledges reliance on the credit of Owner for payment, not the credit of Contractor.

In those 24 states, a true “pay-if-paid” contract usually won’t affect lien rights. Subs can still file a lien and collect in full from the owner. If the job is covered by a payment bond, a “pay-if-paid” contract may relieve the surety from liability on the bond. But be careful. A prime contractor who settles with an owner by compromising the claim of a subcontractor may have to pay the sub in full in spite of the “pay-if-paid” agreement.

“Pay-When-Paid”

When a “pay-if-paid” clause isn’t absolutely clear about the owner’s payment being a condition precedent, courts in those 24 states will consider it a “pay-when-paid” contract. That’s the second flavor. “Pay-when-paid” means the prime contractor still has an obligation to pay subs – eventually. As long as the prime contractor is trying to collect, the subs have to wait. But the prime remains liable to subs for what’s due.

Seven states void “pay-if-pay” agreements but permit “pay-when-paid” contracts: DE, IL, IN, KY, MA, SC, WI. If you like “pay-when-paid,” here’s a typical contract clause:

Contractor will not unreasonably withhold payment to Subcontractor for Work done by Subcontractor once Contractor has been paid by Owner for that Work.

Both “pay-if-paid” and “pay-when-paid” clauses are void in four states: CA, NC, NV, and NY. In those states, the prime contractor has to pay subs when due, even if not yet paid by the owner.

And the other 16 states? It’s too soon to be sure. No court in those states has been asked to decide the issue and the state legislatures have not spoken. 

Caution. This is a capsule summary. There are exceptions. For example, rules for payment can vary with the type of construction (res or non-res), the owner (public or private) and the value of the work. My suggestion: Be sure your contracts are going to work the way you expect. Construction Contract Writer makes that easy, no matter where you live and work. The trial version is free.