My work as a garden’s consultant specialising in domestic landscape disputes involves many different scenarios. No two cases are the same, even though at first site, they may appear to be same problems repeated commission after commission. Probably 85% of my work involves hard landscaping schemes – decking, paving and walling – that have failed for a wide range of reasons. Almost 100% involve problems caused by lack of communication and paperwork, whereby the ‘promised’ has not been ‘delivered’ in the eyes of the customer.
Customer expectations have not been matched by the contractor, or the contractor has not managed to keep control of a site during operations, allowing the project to move away from the original intent or specification. In the eyes of the customer, the contractor has not worked on site eight hours a day, five days a week, met delivery dates or build stages as agreed at the outset, allowed the works programme to slip without giving sound reasons for delays……
All construction projects fall under The Construction (Design Management) Regulations 2015, although there are still many contractors who do not bother with the requirements, although by following a CDM Plan, which clearly stipulates the methodology of running the site and protects both parties, is designed to prevent such problems and disputes.
Breakdowns in relationships rarely start and end quickly. A lengthy trail of emails between the client and contractor, becoming more threatening by the day, until one Part decides to call an end to the project. How this happens is crucial for next developments.
Assuming that the move is instigated by the customer, and ignoring any CDM Plan, which would have probably prevented the breakdown in the first place, the customer should produce a Letter of Termination of Contract. This may be a simple email or time/dated letter, which should be headed as such. This is essential, and important for the contractor, who would otherwise remain liable for maintaining the site, even if the works have been suspended.
The Terms and Conditions relating to a project should clearly spell out how such breakdowns must be handled, although for the purpose of this article, I am assuming that the scheme had no such protection built into the wording. No CDM Plan and no clause in the Terms and Conditions. If the customer simply states that they do not wish to continue working with the contractor, that statement will be taken as a Notice of Termination, although less legally binding.
The next scenario will depend on many factors, and no two cases will be identical as previously stated. The most important matter is that of finance. How much money remains outstanding on the job, how much work remains incomplete, or how much any overpayments may have been made against the contract figures. It is vital that an assessment of the status of finance is made at the time of Termination. There is no doubt that both parties will have a different idea of the value, although it is essential -from your point of view as the Contractor, that your assessment and valuation are as accurate as possible, and fully documented.
For the purpose of this article, I am not including materials left on site, as a different set of advisory notes will be required. Assuming that the breakdown is not sudden, and has been building up over days or weeks, a common scenario involves a gradual slowdown in site activity, with the client becoming more demanding, and the contractor more reluctant to plough more money and labour into trying to satisfy an impossible client, a situation occurs whereby the contractor is looking to move off site to start elsewhere until matters are resolved on the disputed site. This move requires tools and equipment to be moved to the new project. By doing so, the customer becomes alarmed and even more abandoned so problems increase.
And yet, if the contractor does not move equipment off site, any sudden termination may involve being banned from the site. Once a contract is terminated, the majority of clients will close all gates and doors, preventing the contractor from returning to site. Absolutely, flatly refusing any site access whatsoever until they have the chance to have an independent site assessment carried out to enable them to decide on their next move. Many homeowners hold Household Insurance Legal cover, and will start to process a claim against the contractor at no cost to themselves.
Essentially, the whole scheme is in lock-down, with nothing happening at all on site until after an assessment has been conducted, which may take a few weeks. The contractor is unable to access the site to collect any tools and equipment under threat of trespass if an attempt is made to enter the site.
Without wishing to take sides in any dispute, and being unable to comment once I have been commissioned by either party, if you maintain a register of tools kept on site at any time, especially once things start to go wrong, this will prove a very useful document once you are permitted to enter the site and retrieve your tools. It will be invaluable if you are in a position to provide evidence of ownership of certain tools. Most will be obvious, although there are times when they become mixed up with the customers tools, and conflict arises.
I have been called upon to act as an independent mediator, being on site to referee the collection of tools, carefully checking and signing in/out each item. My presence ensures that there is no open conflict, and site clearance can begin. Some customers can be very difficult, trying all they can to make life unpleasant for the contractor to ‘punish them’ for leaving site.
If at all possible, try and avoid having any plant hire equipment on site should a dispute appear likely. Find any excuse to off hire as soon as possible. Heavy and expensive machinery can become pawns in a game of ‘contract divorce’, by denying access for collection, and pressure applied on the contractor by both the customer and plant hire company.