Builder going past agreed date, penalties?

[NHW]

I am 'hopefully' nearing the end of the completion of my extension now but its getting towards the end the work and has now slowed down (less guys coming in and staying for shorter time periods) because i find out that they are being rerouted to another job that their boss has them working on.

I insisted on signing a JCT (Building) contract with the builder before i took him on for the job and he agreed. The agreed completion date was 02/04/2018 and there was 3 days where work was halted due to the snow, i have actually given him 5 days allowance for that. He said the job should be completed by end of this week 20/04/2018 which would make it 10 working days (2 weeks) over schedule.

The JCT contract doesn't stipulate what penalties should be applied if the completion date has been missed, so i am just asking to see what should I do in regards to this, obviously it will have to be something reasonable on both ends but my argument is basically that we signed and agreed on a date which he was fully aware of, and that date had already passed and is going further and further past that date as he is willfully diverting resources from finishing my job to another job instead.

The least that i am doing is charging him for the takeaway meals that i have incurred going past that date because it is the kitchen which is literally unusable at the moment.

If anybody else has been in a similar situation would you be able to offer any advice? Thanks

 

[Notch7]

If you are generally happy with the quality of work and timing is your only issue, I would be patient. Im not sure charging him for some takeaway meals is going to help matters. Have there been any extra, changes of decisions, or any delays on making decisions? - all cause delays.

However if you have an unusable kitchen, it sound like you have a lot of work to reach practical completion.

I would ask him to come round for a meeting after work one day so you can both go through what is needed to be done and agree on timing. Ask him to be honest, theres no point if just tells you a date to pacify you. If the job will be delayed for another week, get him to tell you. Then make sure you keep on top of what is being done each day until completion.

If he is giving you the run around and you havent got a usable kitchen, thats naughty -he knows how important that is.

Polite persistence will get you further than ranting and raving and threatening legal action etc.

JCT contracts are fine in theory, In practice they dont give the client as much protection as one might think.

 

[freddiemercurystwin]

Yes, if there's a problem in six months time with something, a frosty parting now will not bode well.

 

[NHW]

Thats the thing, i have been having issues with quite abit of the work and i literally have to be on-site every day of the project to make sure that things are happening the way they are 'supposed' to. I have invested alot more hours that he has into making sure that the job gets done properly even though i thought that is what i was paying him to do.

I have also caught him trying to shortcut me by not putting any insulation into the roof/ceiling spaces (he literally boarded them up whilst i was out and then when i came back i said that i dont remember seeing any rolls of insulation around, and i asked him to take one of the boards down so i could take a peek and there was nothing there), he also tried to use cheaper quality materials than the ones specifically specified on the plans, i went through alot of details/time with my planner to specify exactly which materials to use.

And there are quite alot more but it would take me a while to list them all to be honest, which is why i have been on the backfoot in regards to our level of 'trust'. He has also come over regularly at least 1-2 times a week but each time it has been a case of "yeah by Wednesday 1,2,3,4 would have been completed and then it will be onto 5,6,7,8, but by then only 1-2 gets completed then 3-4 is moved 3 days down the line and 5,6,7,8, moved onto the week after. This has happened multiple times now, the last convo we had he literally said "will be completed by this Tues/Weds (tomorrow) and when i spoke to the guy that's actually here doing the work he said won't be ready till Friday at least (if that). No amendments/changes/extras were made during the process either.

I have tried the 'polite' approach many times but when you have a wife and child (who originally moved out) but now have to move back in due to going back to school after the Easter holidays going on about it to me it doesn't help matters.

If timing was just the issue then it would be a case of just holding out and waiting for the job to be done, but if you put all the things into perspective he is literally giving me the run around (he is on holiday at the moment!) and i am one of those who won't take that kind of treatment. I am not yet in the mind of threatening the legal action, i am pretty much just wanting to make sure that i come across with a reasonable deduction for the final payment as it has ended up costing me more money/time in the long run. It'd be a different story if he was working with me to achieve the agreed timescale but instead he's gone past the date, gone away on holiday (some subbies still working) and diverted workload to other jobs.

 

[NHW]

Yes, if there's a problem in six months time with something, a frosty parting now will not bode well.

Hi Freddie,

Yes i can understand that either a frosty parting or burning bridges towards the end of a job will not bode well further down the line but if he has already tried to shortcut bits on the job and doing things that he knows might create further problems down the line, considering that i am the one that will actually be living there then i need to bring it up and make sure it gets done properly 1st time around, that to me is more important than slightly upsetting him or giving him abit of 'aggro', bearing in mind that i am bringing things up that he himself hasn't done correctly.

Simplest way i can put it is if i ordered a big mac from mac d and then got given a normal hamburger, i'm going to go back and ask for my big mac and hand back the hamburger. It'd be normal for the cashier to then apologise and hand me over a big mac, but if you saw him take your burger and then just stacked another burger on top of it to make it 'look' like a big mac then i don't know how anybody would not get miffed (i'm also hungry now)

 

[Mottie]

I think any financial penalties should have been clearly written into the original contract. Without that, it’s an incomplete contract and pretty worthless.

 

[NHW]

I think any financial penalties should have been clearly written into the original contract. Without that, it’s an incomplete contract and pretty worthless.

Thats what i thought, but a few people suggested that i use the JCT contract as it is quite a good 'standard' form. I just assumed that financial penalties are different to each job so hence why they couldn't put any penalty figures into their pre-made contracts

 

[Notch7]

I guess it is a big project or you wouldn't have bothered with a JCT contract.

I was involved on a project that was under a JCT -the builder ran out of money, I refused to manufacture the joinery because the client had paid the builder who had no money to pay me. It did eventually get sorted out, but not with a lot of delays. I understnad the JCT contract meant all materials had to go through the builder.

Anyway, I digress, I hope you get your job sorted out. I expect you are keen to finish and have the builder gone.....

 

[^woody^]

The JCT contract doesn't stipulate what penalties should be applied

That's because under contract law, no penalties can be applied.

You should have specified in the contract what if any damages would be likely to apply and the basis for working them out. These have to be actual losses that you have incurred and must be reaonable, kept to a minimum and above all be justifiale and verifiable

You can't just go to a contactor with a claim out of the blue and expect him to pay. And then when you claim your damages, expect him to claim his damages - probably ones you don't know about, but which will be equally valid as your claim.

 

[NHW]

Hi Woody, yes i can see what you mean in regards to the losses and having them pre-set, that is something i will have to figure out with him and something i should have done retrospectively.

With them being justifiable and verifiable, the entire project has been recorded (externally and internally) and the progress of work has pretty much been fully documented. The extra 2 week delay has been of his own doing, not because of something either out of his control or something that i changed that created a problem (as i havent changed anything).

'out of the blue' is a pretty obscure term considering he full well knows and i know the completion date that was signed on the agreement. So for me to have any 'issues' after that date isnt exactly 'out of the blue'.

it'd be like me saying that i'd make the final payment to him, then not actually make that payment until 2 weeks down the line, im sure every other day he is going to be badgering me for that money, the same way im on his back right now.

Seems as though the only person who is allowed to have anything 'to lose' is the customer in this sense, if he can get away with doing as least as possible and also be covered to recieve full payment, delay the work for a timescale that suits him rather than the agreed date that both signed for then the JCT is pretty much just a piece of scrap paper?

 

[NHW]

Sorry i forgot to ask about the bit where you mentioned 'his damages', i would have assumed that if he had any problems that he would have brought them up to me because the validity of his claim would only occur if he has notified me of them at some point.

Each problem that i have had with him i have fully documented via pictures, messages and recorded conversations. He has not brought up 1 issue with me at all, so if he does come up with anything towards the end of this process then surely itll be him thats the one saying stuff to me 'out of the blue'?

 

[Notch7]

If its a case of a 2 week delay on a large project, in the scheme of things isnt a major deal. However if you have had constant issues, poor communication and there is now a lack of trust, then I can understand your frustration.

A 2 week delay on a 10 week project is different to a 2 week delay on a 35 week project.

As I said, your best way forward is polite persistence and forget about any claims for damages. You may be fed up, but getting stroppy at this stage isnt going to help anybody.

 

[^woody^]

Hi Woody, yes i can see what you mean in regards to the losses and having them pre-set, that is something i will have to figure out with him and something i should have done retrospectively.

With them being justifiable and verifiable, the entire project has been recorded (externally and internally) and the progress of work has pretty much been fully documented. The extra 2 week delay has been of his own doing, not because of something either out of his control or something that i changed that created a problem (as i havent changed anything).

'out of the blue' is a pretty obscure term considering he full well knows and i know the completion date that was signed on the agreement. So for me to have any 'issues' after that date isnt exactly 'out of the blue'.

it'd be like me saying that i'd make the final payment to him, then not actually make that payment until 2 weeks down the line, im sure every other day he is going to be badgering me for that money, the same way im on his back right now.

Seems as though the only person who is allowed to have anything 'to lose' is the customer in this sense, if he can get away with doing as least as possible and also be covered to recieve full payment, delay the work for a timescale that suits him rather than the agreed date that both signed for then the JCT is pretty much just a piece of scrap paper?

It's out of the blue if there was no contractual provision for you to claim such damages.

When there are issues during a contract, then both parties may agree these and agree any appropriate payments/reduction in the contract fee.

Otherwise it is your duty to pay for the work done else you are on breach of contract.

If you can't agree then you must still pay and then recover damages after via a legal process - arbitration/courts etc.

Otherwise if you don't pay what is due under the contract, then it's you that could be sued.

 

[Mottie]

Perhaps make them wait for the final payment for a period of time equal to the time the job has overrun maybe?

 

[Notch7]

Each problem that i have had with him i have fully documented via pictures, messages and recorded conversations.

Usually customers that record every single detail in that way do so to knock the builder at the end. Builders are often poor at paperwork and lots of extras get done without charging. Or even more common is a customer insisting that something has been done wrong and needs redoing or the customer assumes something is included when it isnt. Without considerable contractual detail and a daily variation sheet it would impossible on most building contracts to totally avoid any misinterpretation at all.

For example, I had a client email me to say the 1st fix electrics were unacceptable, he had measured the light switch back boxes and there was a 12mm difference (3 boxes, 1was 5 metres from the other, the 3rd in a different room). I thought it was a game he was playing, so I pulled the plasterers off the job until I got written confirmation he was happy with all aspects of the electrics.