Building Disputes - Get it down in writing!
It has been reported this week that homeowners have been told by Consumer Minister Jo Swinson to record builders with a mobile phone so they can claim for compensation if a building dispute later arises. The minister seems to have thrown the iPhone advice in as part of ‘off the cuff’ remarks to try to illustrate the benefits of the proposed new consumer rights bill.
Unfortunately, none of what she said about recording conversations changes the law at all and may in fact be unhelpful, especially if it means people reject written contracts in favour of oral contracts.
The basic principles of contract law provide that there must be an ‘offer’ of the terms of the deal and an ‘acceptance’ of these terms. In principle it shouldn’t matter whether the contract is verbal or in writing. However, in practice, it will be much easier to prove the precise terms of the contract if it is recorded in writing. Without this, you are reliant on the inevitably imprecise terms of a discussion. One party may think they mean one thing and the other something completely different. By committing a contract to writing, the parties will almost inevitably focus on getting things clear and comprehensive.
Ink has more weight than words
In my own practice as a building dispute solicitor, one of the most common areas where disputes arise is where the parties have failed to set out clearly what it is that they are actually bargaining for. So the builder thinks one thing and the client thinks something else!
For example, what is to precise scope of the work (plans or drawings might help), is the builder’s price a quotation for the work or merely an estimate, what additional items might arise, precisely what materials are to be used, what happens if there are delays and what standard of work is required?
Time and time again I see cases where a builder has set off on his version of what is required when this does not accord with the client’s expectations. Unfortunately, unless there is evidence of precisely what was agreed, it can be hard to prove the builder has been negligent or in breach of contract.
Having the agreement in writing is the only sure way to avoid this. When you receive the quotation, you can go through the items to check everything you require has been included and costed, so you can go back to the builder with any additional stipulations. You should pay particular attention to the costs that are set out in the quotation and make sure you know what exactly this includes (specification of materials, removal of debris, making good, VAT etc).
Builders are not defenceless against damage
Something else to bear in mind is ensuring the builder is insured, particularly for significant work e.g. structural. If the worst happens and your builder does damage, will he have the means to rectify the situation? You would be wise to stipulate insurance as a term of the contract and require sight of the policy details as a defence against construction negligence.
Do you need the work completed within a certain time? If this is important, you may need a penalty clause to require the builder to pay compensation if he over-runs.
If you think you can manage all this on an iPhone recorded conversation then go ahead, but I will be advising all my clients to seriously consider a written contract in every case as a safeguard against all forms of property negligence. There are a number of sources of template contract, the longest standing being the Joint Contracts Tribunal (or JCT) contract. The Federation of Master Builders has a similar contract online which can be used and will always be better than a chat with the builder over the coffee table.
