I am currently having a deck demolished and rebuilt for me by a local
contractor. He has taken every opportunity to charge me "extra" labor
costs. He pitched to me that he was a "master craftsman" with 26 years
He charged me 2 1/2 hours at $75 an hour to unload wood for the deck
and "examine" each piece. Please note I rented a fork-lift at my
expense and there were five batches of wood, so it could not have taken
more that 30 mins to actually unload the wood from the truck 75 feet to
He charged me $65 an hour for 10 hours since he says the existing (3)
posts were set deeper than he "could have anticipated" and thus he had
to rent a bigger jack hammer (at my expense) to dig them up (they were
set at about 3 feet depth). Interestingly, he then set his replacement
posts at the same depth of 3' so if he did this, why would he not
anticipate that the previous contractor might have done this as well?
Now he wants to charge me "extra" labor costs again to provide flashing
between the deck and the house which was not present. He tells me
that this should have been done originally. Well if this is the case
then shouldnt this be an anticipated step and not considered "extra"
Bottom line is how can the consumer protect themselves from the
contractor continually adding labor costs by claiming something is not
anticipated, or covered in the original bid? I imagine there is
virtually no job that there is not something that is not anticipated,
and without some type of specific language in the contract, the
contractor can use this to screw the consumer. Are there any consumer
friendly contractor contracts that people have, that I can use in the
future to prevent being continually screwed by a contractor.
OK, now we have a little more info. But lets have all of it.
1) Do you have a contract?
2) If so, what does the contract say?
3) If not, what were the verbal terms?
4) How big is the deck?
Any contract will be written to protect the contractor, since he has a lot
more to lose than you. To protect yourself, get written quotes because they
will also state the terms. A quote is often a contract just waiting for
your signature! Each will be different, so just reading them all you'll get
a little better idea of what you want or not in a contract. Remember, its
Also, and nobody does this, have a construction lawyer look over the
contract. Things that seem obvious to you are not so obvious in a dispute.
For example, the payout schedule. Often this will be "payment of $xxx upon
completion of nnnn". At what point is something complete? When the
contractor says its complete? Or when he's passed inspection for what he's
completed? When are adjustments to payouts made? If you owe $xxx upon
completion of plumbing, and you supplied fixtures he was supposed to pay
for, do you adjust payment at that time or at the end? What if his 12 week
estimate turns into 12 months? What happens if he puts the posts a foot too
close together and now your deck is smaller than its supposed to be? What
if he abandons the job? Do you have a clause that defines abandonment, and
the consequences? What if he's a 65 year old sole proprietor and he dies
mid project? What happens to the advanced money? A good contsruction
lawyer will think of these things. A lawyer who doesn't think of these
things may be a good lawyer, but not a good construction lawyer.
The former is only true if the contract is biased in favor of the
contractor, not a general condition of "any contract". I don't see the
basis for the latter assertion, either.
That a contract favors one party over the other is not a tenet of
contract law--a good contract should protect both parties and be an
equitable sharing of both responsibility and risk and include, of
course, as detailed description of scope and individual
responsibilities, etc., as is practical. It is, in fact, possible for
a contract which is excessively one-sided to be held unenforceable for
I'm certainly not a lawyer, but know at least some basics... :)
I took two terms of business law, and I remember learning about how its
possible for contracts to be unenforceable. But stupidity is not a reason
to void a contract.
And I'm also in the tail end of an extensive building addition. I've seen
how its very possible for a contract to very much favor one side and be
perfectly legit and enforceable. Among other things, I got caught in the
vagaries of the payout schedule. It seemed clear when we signed the
contract, we'd pay a certain amount as each piece of work was "completed."
Since we never defined what "completed" was, the builder got to decide.
This caused lots of problems because he was able to demand money from us
that we felt hadn't been earned yet. He'd then take our money and disappear
for weeks or even months. At one point we told him we're not paying until
WE felt that portion was completed, and he threatened legal action.
In the end, we will be getting close to what we contracted for, and the
builder will get paid close to what he was supposed to get. The middle part
got pretty ugly however, and we had almost no leverage, and the builder
really took advantage of that.
Yes, it takes an extreme case usually to actually get it voided for the
reason of bias alone.
I was simply trying to emphasize the point that the intent in contract
law isn't to favor one party over the other. But, in general, you're
correct, it is the responsibility of each party to ensure their own
interests are protected adequately.
That's perhaps an example of an incomplete or ambiguous contract, or it
could have been written specifically that way on purpose and got
through. Was it clear from contract language the builder was the sole
arbiter of "completed", or did he just assert it?
And, yes, writing complete (and fair) contracts _is_ difficult which is
why there are lawyers, amongst other reasons. And, of course, there is
still the fact that fundamentally, even good contracts are only as good
as the signatories' willingness to live up to them. If sounds like it
would have been quite likely in your case even if there were provisions
for "mutally-agreed completion" the builder may have been one who would
still have pushed for early payment.
The difficulty in most building or remodeling scenarios is that the
builder generally starts with a standard contract form that may well be
(probably is???) at least mildly biased in his favor and the client is
in the position of having to press for inclusions (or deletions) of
provisions to more nearly balance it. Most often they don't take the
time or effort to fully appreciate the necessity of this and may feel
some pressure to take it as offered because they particularly want the
specific builder for various reasons and are afraid to risk losing him.
Other disadvantages include simply not having the expertise to
recognize potential trouble spots such as the omission of who
arbitrates in case of dispute or how decisions such as in your example
are made. Builders with a reputation may have the luxury of being able
to say "take it or leave it" as they have all the work they can handle
anyway, so it isn't necessarily a totally level playing field from that
From your two years of business law, you will recall that clarity
(capable of interpretation) is one of the conditions required for
there to be a contract, and no doubt you will also recall that where
there is ambiguity, the contract is interpreted *against* the
interests of the author.
This is very true. Which is why my contracts are short and simple.
Two pages, max. Plain english.
If the client wants to wriggle out, I'm happy to lose him. If he
acts badly, I'll dump him. Contract or no.
While I didn't take more than a couple courses and had some additional
seminars on business law, not even close to two years', I do recall
that :) And while true, for that to occur would almost certainly
require a formal adjudication process in practice. The question
(nearly rhetorical, but of at least passing interest in the particular
instance) was whether it was unambiguous as to who determined
"substantially complete" for progress payments and in case of
disagreement were there defined rules or did the contract simply not
say and so it defaulted to the (apparent) pissing contest? (Or, of
course, it could be that neither party actually followed the terms of
the contract itself which might have had all these things spelled
out--not likely w/ the given information, but no way to know for
But, in all matters substantial, it would appear we're in essentially
Since we sorta' went on without you :) , I'll just respond in one
The comment regarding who arbitrates wasn't meant as an arbitrater-only
option necessarily, but simply referred to any definition of a dispute
resolution process. As you note, without one, essentially any
disagreement may descend to the lowest common denominator and the
knowledge that resorting to a legal battle isn't helpful to either
It's also very common (almost universal?) for folks to not think they
will ever be in an advesarial postion with their builder, but it will
be almost as uncommon to _not_ be some conflict before a major project
The example simply illustrates very clearly the old saw of "the devil
is in the details" and the importance of serious review of a contract
by impartial and experienced eyes.
In this case, the simple expedient of requiring work to have passed
appropriate inspections, etc., before acceptance could have alleviated
a lot of heartburn, apparently. But, granted, going in, one never
thinks the contractor would do substandard work so it isn't routinely
thought of to include such specificity.
Yeah, but to get to that point meant suing him while the house was quite
unfinished and waiting three years before going to trial. That was not
realistic for us.
This was a one page contract, plain English.
Yes, our contractor many times suggested we fire him. I told him no. Funny
that he wouldn't quit the job however. The contract didn't address
mid-project cancellation. That's where I had some leverage.
Yes that's true. What would have been better for us would have been a
definition of when a phase was "completed." Like the plumbing for example.
He said it was done when he was finished roughing it in. The inspectors had
almost all of it ripped out and replaced. Some sections had to be replaced
a second time.
There's also the issue of trust. We didn't feel the need to analyze the
contract language to that degree. And chances are, had we re-worded the
contract, he'd have accepted the changes. When we signed the contract we
never imagined being in an adverserial situation with our builder.
There was no arbitration clause in our contract. I would not have accepted
HomeOwnersHub.com is a website for homeowners and building and maintenance pros. It is not affiliated with any of the manufacturers or service providers discussed here.
All logos and trade names are the property of their respective owners.