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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Good evening, I wonder if you can help. I commissioned

Customer Question

Good evening,

I wonder if you can help.

I commissioned a builder some time ago to build a new house for me for the sum of £140,00 which included site clearance and an element of Project Management (the latter element not the subject of any agreement in writing albeit that there is evidence that PM duties were undertaken).

Works commenced slightly late (builder had overrunning commitments) in September last year.

Works ceased at Christmas because there were further planning conditions to be discharged - the builder had agreed to help me with these as part of his PM role (materials, drainage, ridge height and boundary). At all times, he was aware that these conditions needed to be discharged.

At this stage, the ground works had been largely completed and the footings poured - the builder has been paid for these works.

Unfortunately, the builder did not make the application on my behalf correctly neither did he provide the information to the Planners in an acceptable format.

I ended up having to instruct an architect to carry out an additional survey and make the application on my behalf.

The planning conditions were successfully discharged at the end of March and I informed the builder immediately that I would like him to recommence the works.

Understandably, the builder had secured some work in the meantime to see him through however I was shocked when he told me he had taken on 5 additional projects and could not recommence the works until March 2015.

To me, this doesn't seem reasonable.

I am not sure whether or not he really wants to complete the works and is suggesting, in any event, that I will need to agree a new price as the cost of materials and labour have increased and isn't prepared to have a meeting at this point to discuss or agree a way forward.

Part of the initial deal was that he would insure the works (NHBC or similar) but this has not happened.

The site is reasonably secure with fencing and some equipment provided by the builder still on site.

I am concerned that either he will not complete the works at all or that, if he agrees so to do, that he tries to recover the cost of the initial delay (or which there is no provision), the cost of the insurance (which he agreed to include but forgot to cost) and non-transparent or spurious additional CPI/RPI related costs.

I would like him to insure the works as agreed, complete the works but he seems to have taken the view that he can continue when it suits him rather more than when is reasonable.

I have had other prices which are considerably higher and would be looking to him to make up the difference if his position is deemed to be unreasonable.

Kind regards,

David
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Did you sign any form of contract please.?
JACUSTOMER-3uwz7qsp- :

Hi,

JACUSTOMER-3uwz7qsp- :

There was no written contract.

JACUSTOMER-3uwz7qsp- :

Just a quotation and then a letter setting out the scope and payment stages - so, no formal contract i.e. Minor Works.

Alex Watts :

Was it part of the deal that he would have to make the application and do the work?

JACUSTOMER-3uwz7qsp- :

The letter referred to the works to be completed and the payment stages and a vague reference to liaison with others.

Alex Watts :

What is it you want to achieve please?

JACUSTOMER-3uwz7qsp- :

That said, he did make the application on my behalf to the Planners and did provide the survey information (which was insufficient) - he then withdrew the application. All of this is a matter of record.

JACUSTOMER-3uwz7qsp- :

I would like him to complete the works within a reasonable timescale for the contract sum as agreed (or to be reimbursed for any loss I suffer).

JACUSTOMER-3uwz7qsp- :

In the meantime the works should be insured as per our agreement.

JACUSTOMER-3uwz7qsp- :

I don't think it is reasonable to say March 2015 or suggest that the price will be increased.

Alex Watts :

What is the cost to date for the extra work etc?

JACUSTOMER-3uwz7qsp- :

The initial contact is £140K of which around £15K has been invoiced and paid - the nearest price I have from others is £177K to complete. Thus the works will cost me £192K in total.

Alex Watts :

The case rests on whether the builder was instructed to make the application etc and then if it was his fault it fell through

Alex Watts :

If it was then he would be in breach of Section 13 of the Sale and Supply of Goods and Services Act 1982 by not taking all reasonable skill and care.

Alex Watts :

This means that he would be liable for any losses flowing as a result.

Alex Watts :

This means that he would be liable for any extra charges. Therefore he would be required to do the work for the agreed price and nothing extra

Alex Watts :

If you incurred extra costs as a result, he would also he liable for those costs.

Alex Watts :

Can I clarify anything for you about this today please?

JACUSTOMER-3uwz7qsp- :

To be honest, Project Management is outside of his competence - he took on more than he was capable of doing. Prior to undertaking the work, he was aware of the Planning Permission Conditions but it subsequently became clear that he did not understand the implications (i.e. that there may be a delay whilst the application was considered). The fact is, he made the application for me and then withdrew it. He also provided information & technical details that were useless to the Planners. Notwithstanding this issue (and let's say I can't argue it successfully), please can you advise on the issue of insuring the works, the time frame for reasonable completion and the uplift in costs.

Alex Watts :

Well if you knew he was not competent then sadly you would be liable for the extra costs etc.

Alex Watts :

If you thought or reasonably believed he was able to do it then he is responsible

Alex Watts :

Therefore he would not be able to claim an increase and should insure the works

Alex Watts :

Does that clarify?

JACUSTOMER-3uwz7qsp- :

When I asked him to make the application, of course I thought he was competent - it is what has transpired subsequently that has led me to believe that he is not.

Alex Watts :

Yes in that case he is liable for the additional costs

JACUSTOMER-3uwz7qsp- :

Leaving aside the question of the discharge of conditions, is it the case that he can delay as long as he would like and increase the contract price?

Alex Watts :

No - he is contracted for the price, he can't raise it

JACUSTOMER-3uwz7qsp- :

In respect of the delay, is March 2015 reasonable given that this is as a result of 5 additional projects (a short delay or 1 or 2 projects I could live with, but 5 seems unreasonable)

Alex Watts :

I agree 5 seems unreasonable.

Alex Watts :

You may need a Court order making him do the work

Alex Watts :

Does this help?

JACUSTOMER-3uwz7qsp- :

Yes....on a final point....the works (footings) should have been insured by the builder from day one - I assume I could similarly force him to comply with this condition?

Alex Watts :

Indeed.

Alex Watts :

Does that clarify?

JACUSTOMER-3uwz7qsp- :

Hi Alex, yes thank you - do I need to go through mediation or arbitration or can I use to court to proceed with this if necessary?

Alex Watts :

I would consider mediation as that is a cost effective service that can generally produce results.

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.

Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

JACUSTOMER-3uwz7qsp- :

Hi Alex,

JACUSTOMER-3uwz7qsp- :

Hi Alex, is the mediation/arbitratio route

JACUSTOMER-3uwz7qsp- :

Sorry....IT challenges.....is the mediation/adjudication/arbitration route compulsory. In the event that the builder does not respond to an invitation to mediate, I assume that puts him in a weaker position?

Alex Watts :

Its not - but you should always consider it.

Alex Watts :

If he does not mediate then it is a matter of costs at Court

Alex Watts :

Does that clarify?

Alex Watts :

Please remember to leave feedback before you go today

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