Wits end with a customer
Problem: Firstly, a bit of background information. I am a builder, sole trader, with no employees and use subbies as and when needed and have built up a great reputation since starting out by myself in 2008. In May 2019, I provided a quotation to carry out some building works on a house (owned by a husband and wife). My quote set out the price for the work, the scope of works and a time frame of between 16 to 18 weeks to complete, which the customers accepted.
Before I started work on 5 August, I sent the customers an email requesting further details on certain aspects of the work. I also reminded the customers of the items of work that was excluded from my quotation because of lack of information.
From early in the job, the customers made lots of changes. For example, height of the roof was increased, extend the rear patio, new utility room, rebuild a corner of the house, drainage layout and changes to the masonry specification. Some changes I have not charged for in order to push the job on and prevent a dispute, whilst other changes the customers have agreed to pay for. I estimate that there has been an addition of 30 working days to accommodate the changes. On top of this, Leicestershire has recorded some heavy rain over the summer, which has slowed down operations.
The customers had initially planned to move out of the house whilst the works were being carried out. However, for a few weeks after I started work, I managed to plan the work so that the customers (along with their children) could delay moving out of the house.
Now to the current state of play. Once the customers realised that I would not be completing the work within the original estimate of 16 to 18 weeks (with completion now estimated in March 2020), they have been bombarding me with emails complaining about how slow I have been, the standard of work and how much it is costing them by not being able to move back home, with the more recent emails containing personal insults. And today I received another email where the customers have stated that they are making time of the essence and I do not know what to do. I am also running out of cash.
Any help or advice would be really appreciated as I am really worried. The customers are really unreasonable and nasty people and I haven’t experienced this before.
Response: I have great sympathy with your situation. In the past, builders have not enjoyed a particularly good reputation, at lot of which is down to the media and shows like ‘Builders from Hell’, ‘Cowboy Builders’ and the BBC’s investigative journalism programme ‘Watchdog’. However, from my own professional experience, this reputation is not only unwarranted for the industry as a whole, but very often the tables are turned on builders by ‘customers from hell’, and your matter is just a typical example of a customer taking advantage of an honest and competent builder.
If the contract between you and your customer just consists of your quotation (which your customer unequivocally accepted), then the terms and conditions of the contract will include the obligation that you will complete the works within 18 weeks from commencement. However, should you fail to complete the works within this timescale as a result of acts of prevention by the customers, or instructions from the customers to carry out additional work and / or make changes to the contracted scope of works, your obligation as to time will be to complete within a reasonable time (as implied by the Sale of Goods and Services Act if the contract is silent on additional time).
Because your customers have given you additional work to do and made changes to the contracted work, all of which have had an impact on the time, your customers cannot hold you to the initial completion date.
As regards to your customers asserting that they have now made ‘time of the essence’ a condition of the contract, this is nonsense. First and foremost, a party cannot unilaterally decide to introduce a new term or condition post contract – both parties must agree, which clearly this is not the case with your contract. Additionally, the general position at the date of contracting is that, even where a date for performance has been specified in the contract, the obligation to complete within a particular time will be treated as a warranty as opposed to a condition, hence time will not usually be of the essence unless expressly stated.
Given the barrage of abuse you are receiving from your customers, I would recommend that you seek the services of a quantity surveyor that can be the front of your firm and start to assert your rights and remedies. Good luck.
© Michael Gerard 2020
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.
Michael is a Solicitor, Chartered Builder & Registered Construction Adjudicator, and is a director at Michael Gerard Law Limited, a solicitors practice regulated by the SRA.