Suspension of works due to non-payment is limited. If the employing party has, in response to your application issued a valid payment or payless notice setting out their valuation of the works, this will generally be legally sufficient and provide you with no grounds to suspend.

Many Contractors make the mistake of suspending works or withdrawing labour from a project when they do not agree with the employing party’s valuation, resulting in the Contractor putting themselves at risk of breaching the contract and being liable for damages.

If the employing party has failed to issue a valid payment or payless notice and you wish to suspend, you must also provide the employing party with a valid suspension notice, giving the party 7 days to remedy their default and make payment prior to suspending your works. Please note however some construction form of contract expressly detail longer suspension durations, and you must comply with these strict requirements.

Setting off money owed on one job against a debt owed on another job is generally not allowed, unless express terms of a construction form of contract provide for it.

If a project is not being undertaken as planned, you must issue notices. The durations between notices varies from contract to contract, some require daily notices to be issued, others are much more relaxed. However, failure to provide notices capturing delays and scope change may result in difficulty recovering any additional money or time.

The key to successfully managing your construction form of contract is early engagement with notices and ensuring that communications are maintained regularly and accurately.

During the delivery of your projects, accurate record keeping is essential, particularly any correspondence relating to money and time. At final account stage, you are usually required to issue a statement setting out the amount you believe is due to be paid, along with supporting evidence.

Many contractors make the mistake of submitting a statement similar to that set out within an application, only providing a list of activities detailed to be 100% complete. This failure to include sufficient information evidencing their claim can be problematic, potentially resulting in non-payment or delaying dispute proceedings.

If the final account goes to adjudication, it is essential that the applying party has provided all evidence to the employing party, prior to including such documents within an adjudication referral. Otherwise it may be deemed that the parties are not yet in a “crystallised” dispute, and the Adjudicator may resign his position confirming that he does not have Jurisdiction to make a decision.

Practical completion is a term used in many construction form of contract. It is often considered to be the subjective moment that the works become complete and only a few defective items remain outstanding. These defects are defined as “Trifling” and outlined in the Court of Appeal’s ruling of Mears Ltd v Costplan Services (South East) Ltd [2019]. The court provided the following guidance, allowing parties to determine if a defect is trifling and therefore not preventing practical completion, or if it is not trifling and preventing practical completion:

1. “Practical completion is itself difficult to define and there are no hard and fast rules.
2. The existence of a latent defect will not prevent practical completion.
3. It makes no difference whether a defect involves an item of work not yet completed or one that has been completed but is defective.
4. The existence of patent defects will be sufficient to prevent practical completion, save where they are trifling in nature.
5. The ability to use the works as intended may be a factor in considering whether a patent defect is trifling in nature (for example, in this case the fact that the rooms were 3% smaller did not prevent the rooms from being used as student accommodation). However, such an ability does not necessarily mean that the works are practically complete.
6. The mere fact that a defect is irremediable does not mean the works are not practically complete. The question remains whether the defect is trifling in nature.”

References:

Mears Ltd v Costplan Services (South East) Ltd [2019]

Having a clear written agreement between you and your builder that is legally binding is essential for both parties to be protected. You both have a clear understanding of how much the works are going to cost, what is included and excluded, when the works are going to start and their durations, as well as who will be responsible for arranging, obtaining and paying for the relevant planning, consents, and insurance.

Failure to have an express agreement can result in all kinds of problems, which is not a pleasant experience when your home is half renovated and you feel your control of the build is slipping away.

If you have a detailed construction contract in place setting out the agreement between you and your builder, it is much easier to determine if any additional money is due. Once both parties (you and the builder) have entered into an express construction contract, there are procedures in place to manage and control the scenarios, preventing either party from claiming unfair extras, walking off site, or supplying unsatisfactory materials.

The lack express construction contract setting out the particulars can lead to multiple issues for both parties.

This question is usually asked when a project is halfway through completion, the builder is now not turning up when he had agreed to, and progress seems to be grinding to a halt. Or, where works are progressing, but the builder is requesting more and more money to carry out the works you believed you had originally agreed were in the price. A high stress situation.

In this situation, your rights as a consumer are provided under the Consumer Rights Act 2015. The implied terms of the statue may provide limited rights and remedy the situation; however, the finer detail of any agreement will be more challenging to define.

We suggest acting early in your attempt to resolve the situation, contact Contract Rite for a free no obligation discussion.

Once you have entered into contract with your tradesman, you are only able to agree any changes, extras, omissions if there is a mechanism for this in the contract or if your builder agrees.

Follow the contract process or, if none exists, ask your builder to provide a quotation which may be added to the price if approved. Remember you do not have to automatically approve every quotation. Our team of quantity surveyors can help with an estimate to see if your builders are being reasonable.

Contact us today for a free consultation - 01780 243127.

Whilst an upfront deposit is not uncommon, we highly recommend that it is not a requirement. Your builder will generally have a 30-to-60-day payment term agreement set up with their suppliers from the date the materials arrive on site. There is therefore little reason that an upfront deposit should be required. If, however it is insisted, we suggest a Personal Guarantee is provided from the builder to offset the risk to you that he might become insolvent halfway through the project, or fail to commence any works whatsoever.