In a construction lawsuit the court cannot consider promises outside the scope of the parties’ written contract unless there is a written document signed by the parties altering the terms of that contract.
Construction attorneys simplify this rule: “If it ain’t written, it didn’t happen.” This rule can hurt the remodeler’s ability to defend a customer’s claim for project delay or the remodeler’s claim seeking payment for additional work.
The fix: Use customer contracts that define a simple change order process for unforeseen conditions and alterations of the scope, price, and/or time of the project; and diligently follow that change order process during the project.
Change orders are not just for additional money. They are created if the customer wants to add to the project or change materials or take a vacation or if the remodeler finds, say, water-damaged base cabinets or inadequate subflooring that will require additional labor and materials.
In short, if there is anything that occurs during the course of the project that alters the scope, price, and/or time of the project, prepare a change order and have the customer sign it. It is even good practice to have the customer sign a change order when the remodeler provides additional goods or services at no cost as a customer accommodation during the project.
None of us likes to think about potential claims when we’re starting a project. The fact is, however, they regularly occur. Adherence to a simple contract change-order process not only assists the remodeler in defending or prosecuting a claim, it can quite often help avoid a potential claim in the first place as the parties’ have a written record of changes to the scope, price, and time of the project when those changes occur.
When unplanned changes occur during the course of the job, have a contract change-order process in hand to assure smooth processing of those changes to avoid future disputes. Remember, if it’s written, it did happen.
—Attorney Richard Feeley is president of Feeley Mediation & Business Law, providing legal solutions and dispute resolution services to residential builders and remodelers. www.feeleymediationbusinesslaw.com