Mike Hansom, Solicitor
Avoiding disputes.
It helps to be as clear as possible from the outset what you and your builder want. Builders are not always good communicators, or may deliberately avoid difficult issues until the work has started. Once they have taken down a wall or two, you might find it difficult to negotiate with a gang of builders in your kitchen. Whilst most builders are reasonable, if you can not agree, you are left with few options.
It is also very common in disputes for there to be a difference of opinion as to what was said. As such it is important that the agreement and any subsequent changes are confirmed in writing. A reasonable builder should have no objection to this, once you have agreed a price. Things can get confused if the agreement is recorded in exchanges of specifications, quotes and subsequent letters.
It is always best to have one written contract, signed by both sides. It is surprising how many projects costing five figure sums are entered into with little or no paperwork. It is common for sensible people, who examine their receipt at a supermarket, to enter into a complex £10,000 building contract without anything in writing, but instead rely solely on the goodwill of a builder they have met twice.
If the agreement is varied at a later date to include extra works, this can add further complexity and confusion. Of course it is always best to try to avoid adding significant works or changing your mind after an agreement has been made, but building work often is not that simple. When the variation and/or additions are unavoidable always ask your builder to confirm them in writing, listing a description of each job and the price that was agreed.
A thought through contract can avoid the genuine misunderstandings, which might lead more excitable builders to storm out. It can also set out payment and progress timetables, which help both builder and homeowner. A contract can also allow for dispute resolution, without the need to spend tens of thousands of pounds on Court Proceedings. If you wish to enter into such a contract you should approach your local solicitor, who can often help. Alternatively, you can employ an architect to supervise the works
Disputes
Homeowners’ first priority when they have parted company with a builder in mid contract is to reclaim their home. However, before any remedial works start, if there is a possibility of a dispute, you should get a surveyor in to assess the situation. If you have a substantial dispute you should see a solicitor at that stage, as you may be criticised for not offering the builder an opportunity to survey the site or complete the job.
If that is not economic, you should at least take a careful itemised record, including photographs, of the problems and get three quotes for the remedial work. It is a good idea to get the new builder to give an opinion as to any defective work.
When disputes arise the sums involved may not always justify involving lawyers. However the Small Claims courts are designed for litigants in person to manage their own relatively simple building dispute claims, where the value of the claim is unlikely to exceed £5,000.
Common problems are that homeowners pay the full or most of the contract price and the builder then demands more money in order to finish the job. Sometimes the contract clearly shows the work, which was agreed, and the price to be paid. If you can prove that a substantial amount of work within this contract has not been done, that the builder has refused to continue unless you make additional payment(s), and that you paid all or most of the contract price, you will have a good chance of succeeding.
Other times the work done is not up to standard. In every consumer contract there is an implied term that the work done is of satisfactory quality and fit for its purpose. If it is not, then you are entitled to be compensated.
It is possible to draft a claim form and issue proceedings against the builder, and run a claim without legal representation yourself. This DIY approach can be successful, with careful preparation and objective analysis, but one has to be prepared to make a major long-term commitment to the process. Even a small claim can take over nine months to finalise. The court staff can be helpful, and judges tend to make allowances for litigants in person. However there are still pitfalls and the decision to proceed should not be taken lightly. Ultimately you are risking exposure to paying your builder’s legal costs if you lose the case, which would be galling. A builder might also have a counter-claim against you.
Unfortunately, just because a claim is of a relatively low value does not mean it is going to be simple. You may feel that you want some input from a lawyer at the start of your case. Many solicitors can provide an initial fixed cost advice and help with the initial papers. You may then feel able to deal with the court procedure, hence saving costs. Legal costs are not normally recoverable for claims under £5,000, although some other costs are. Although full legal aid is not usually available for such claims, some limited means tested assistance from a limited number of agencies is available. It is however well worth carefully searching your home, car and any other insurance policies to see whether they might provide for the payment of the costs of a solicitor.
