Despite your best efforts to nail down every detail prior to construction, there will always be loose ends to tie up at the start of the job and during the course of the project. This may involve costs, design details, job-site issues, contract procedures, or concerns about quality and workmanship. You don’t have to document every little item that comes up for discussion, but anything that’s really important to you – or that involves a lot of money should be documented in writing.
WHY PUT IT IN WRITING?
In real estate law, anything not put in writing has little value. And although “verbal contracts” are, in theory, binding on the parties who made the verbal agreement, enforcing a verbal contract is next to impossible. Even agreeing on what you actually agreed to is difficult to establish. Therefore, if it’s important, get it in writing – or at least record who said what and when in a daily job log that you can refer to if necessary. A daily or weekly scheduler, available at any office supply store, will do the trick and help keep your notes well organized.
In general, you should document in writing any verbal communications that may have a significant impact on costs or risk. You should also document minor items that are important to you, such as a small design detail that you and the contractor agreed to, but might get overlooked by the workers in their day-to-day effort to get the job done on time. Finally, you should thoroughly document (with both words and photos) any problems or questionable procedures in case you need to make a warranty claim.
While it is best to get both parties to sign off on an agreement, documenting the conversation with a date will give you a leg to stand on in negotiations or in resolving disputes, if it comes to that. In most cases, documentation protects both parties, so your contractor should be happy to sign off on any changes, delays, extras, or clarifications to the plans, specs, or contract. In many cases, the contractor will already have documented changes with a change order, but small items may fall through the cracks.
Items to document in writing include:
- Clarifications to the plans or specs.
Example: “For wind protection, contractor agreed on [date] to use 8 nails per shingle as recommended by manufacturer for high-wind areas”
- Any deviation from the plans or specs that you and the contractor agree to.
Example: “Owner requested soundproofing wall between bedroom and master bath with fiberglass insulation and extra layer of drywall glued to each side of wall. Also caulk any penetrations in wall with resilient caulk. Extra work priced by time-and-materials.”
- Clarification or changes to contract terms.
Example: “Due to weather delays, We can’t finish the job on the projected completion date due to material delays. We expect to finish by no later than [date].
- Verbal guarantees or warranties.
(1)“Don’t worry – I’ve always done it this way and have never had any problems. I guarantee it will work.”
(2)“Our basements are always bone dry with this approach. If you have any basement water problems, we will come back and make it right.”
(3) “If there is settling in the backfill around the basement, we’ll come back and regrade to create proper drainage away from the house.” [Date, description of work, warranty terms, and both signatures required]
- Any problems or questionable techniques you notice with the construction or product installation. Examples:
(1)You observe the roofing sub installing asphalt shingles in a snowstorm. Make note of the date and temperature, and take photos if possible. If you later have shingles blow away because they did not seal properly, you have a strong case that the contractor is at fault, not the shingles.
(2) You see your roof trusses mishandled by the crane and stored improperly, and notice that some of the truss plates are pulling away from the wood.
- IMPORTANT:If the issue involved materials or workmanship, take lots of photos. In many cases the defective workmanship will only visible during the construction process and will later be forgotten or buried in the walls, ceilings, or roof.
Suppose at the preconstruction meeting or weekly meeting, or on a phone call, an important point is clarified verbally, but is not reflected clearly in the existing documents. It is a good idea to document what was agreed to. A simple letter or memo will do – even an email. While it may or may not hold up in court, that’s not really the point, as it’s rarely cost-effective to settle residential construction disputes in court. More importantly, it’s a written reminder of what you have agreed to, which will help avoid disputes later in the job. Relying on memories of who said what is asking for trouble.To help maintain a positive relationship positive, your memo should include your responsibilities in addition to the contractor’s. For example, send a letter or email that states:
Thank you for meeting with us today to discuss our new addition. As per our discussion today, I understand that I will be responsible for meeting all deadlines for product selection. I also agreed to keep my dog in a crate during your work hours. You agreed to remove the sections of fence, as needed, to access the back yard and will repair the fence and re-sod the section of lawn when your work is completed.
Cordially, Bob and Sue Smith
A more touchy subject is documenting problems with the work in case there is a future dispute or warranty issue that rests on whether the work was done correctly. Since memories fade, and much of the work is hidden from view in the finished building, it’s important to document potential problems, as thoroughly and as soon as possible. If there are problems later, the manufacturer’s warranty will likely be voided if the installer did not follow the manufacturer’s instructions. In that case, the installer or contractor is at fault and is liable for repairs – if you can document the error.
Problems may be with the storage of materials, the condition of the materials when they are installed, the type of adhesives or fasteners used, or the temperature or weather conditions during the work. For example, lumber, roof trusses, or other materials left out in the elements to soak up water may cause problems later. Pouring concrete into a water-filled trench will not produce strong footing. For exterior work, note the temperature and weather conditions since many caulks, adhesive, paints, and other finishes have strict temperature ranges, and many should not be applied to wet materials.
Contractors naturally resent the type of customer who crawls around the job site after hours with a square and level checking every piece of lumber. This level of scrutiny is rarely justified. But if you think something is not right, it’s best to address it sooner, not later.
Ask questions. As a first step, be respective and inquisitive. Ask a lot of questions, but mostly listen. After all, this is your project and you are probably naturally curious about how things are done. Even if you know a bit about construction, acting dumb (Columbo style, for those old enough to remember) can be a very effective strategy for getting useful information.
Maybe the company owner or general contractor is not aware of the problem caused by a worker or subcontractor. In that case, don’t hesitate to ask the contractor. If you do not get satisfactory answers, you’ll need to do a little more research, or discuss it with your architect, construction supervisor, or an outside expert, as discussed below. Some examples:
“It looks like they dug a bit too deep for the foundation and added back some fill. Do you think it’s adequately compacted?”
“I noticed some stumps and wood scraps in the backfill around the foundation – can that cause problems with insects or settling?”
“Is it OK to pour the concrete footings when the forms are filled with muddy water?”
“I noticed that the new siding got rained on for three days before they started painting…how long does it need to dry before it’s OK to paint?”
“Is it a good idea to put shingles directly on the plywood with no roofing felt?”
“I noticed that two of the new windows are very hard to open. Anything you can do to make it easier?”
“I noticed that the gap between the ceramic tile and tub is grouted. Is it better to use caulk there to prevent cracking?”
And so on. Choose your battles, but don’t be shy. There’s no reason you should accept shoddy workmanship that does not comply with well established industry standards.
Consult manufacturer’s instructions. Since you are probably not a construction expert, in most cases it will be hard for you to identify if work in progress is defective. However, if something doesn’t look right to you (see Trade Associations), don’t hesitate to ask questions. If you don’t get satisfying answers from the contractor, you can often get information directly from the product manufacturer (or their website) or the relevant trade association for that type of product or material. Most manufacturers of building products publish highly detailed installation instructions. They want their products to be installed correctly so they perform well – and they want to avoid liability for product failures due to improper installation.
Call an expert. Sometimes it pays to bring in a consultant or professional to evaluate the work. For example, if you have any questions about structural support, consider hiring a structural engineer to take a quick look (better still, if you had him look at the plans before construction begins). On two occasions, both involving shed dormers, I asked the contractor to beef up the structure on the advice of an engineer. They didn’t appreciate my suggestion either time, but did the extra work, which I gladly paid for. Now when there’s a couple of feet of wet snow on the nearly flat roof, I don’t worry about sagging roofs and cracking plaster.
Take lots of photos. If something significant (potentially expensive to fix) seems wrong to you, take lots of date-stamped photos and document the work done each day, the techniques and materials used, and any relevant conditions such as temperature and weather. Digital photos are cheap and too much information is never a problem in these types of disputes. Tale plenty of close-shots and wider shots showing the surrounding structure. If possible, record the specific products, adhesives, paints, or other building products used. Then file these away in case you need them later to document how the work was done.
Hopefully, you’ll never need to present your documentation to a court or insurance company, but it’s good to have just in case. If the problem is significant enough that you feel the integrity of the entire project is at risk, it’s probably time to speak with a lawyer well-versed in residential construction law.
If you’ve hired an architect to oversee construction, you may think that you can rest assured that the architect will keep a close eye on the contractor and protect you from any construction defects. This is true to a limited extent, but does not let you off the hook.
Often the architect will recommended contractors whom he knows and trusts and, assuming you have hired one of these, any differences of opinion over construction details will probably be worked out amicably between the architect and contractor. If you hire a contractor unknown to the architect, how well the two parties will work together remains to be seen.
In either case, however, the architect is typically not legally responsible for construction defects or for preventing them. He or she is primarily an advisor to you the owner. If the architect reports to you that there are defects or deficiencies in the work, get his or her report in writing with as much documentation as you can. The responsibility is still on you to take action if there are serious problems with the work.
This is made clear in the AIA contracts used on most architecturally designed projects. The language in the AIA Contract A107 reads:
10.3 On the basis of the site visits, the Architect will keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and deficiencies observed in the Work. The Architect will not be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work.