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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70199
Experience:  Over 5 years in practice
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We are having an extension built and our builder is now about

Customer Question

We are having an extension built and our builder is now about three months behind schedule. We have a JCT contract however, we have recently discovered that his company was dissolved before he even signed a contract with us and his VAT number is ***** valid. We desperately need to get back into our house (currently living in a caravan) so do not want to frighten him off however, we are also concerned that he is breaking the law by working under the name of a company that no longer exists, pocketing VAT himself and extracting money from us when he has not actually completed the work he is claiming for. We have an Architect administering the contract but he is equally poor at his job and seems to be on the builders side. What should we do? Would a lawyer be able to help?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
.
Thank you question. My name is ***** ***** I will try to help with this.
Did you agree time was of the essence in the contract?
Customer: replied 2 years ago.

The builder gave us an estimated time to completion of three months when he put in his bid. When we signed the contracted the agreed completion date was six months from the start. We have repeatedly advised both the architect and builder of our concerns about progress but there have been many times when days or even weeks have passed with no work being carried out. We met on site in December and agreed a revised end date of January 30th but there has been little progress made since then and I cannot see that we will be back in the house in two weeks. So, yes, he has been aware that time is important. The caravan we are living in is directly opposite the house and we remind him regularly that we need to move back in but it has no impact.

We have asked him directly if he has a "cash-flow" problem but he has denied this. We have asked if he has other jobs on but he denies this too.

Expert:  Jo C. replied 2 years ago.
Ok.
But did you use those specific words in the contract?
Customer: replied 2 years ago.

There is nothing in the contract that says "time is of the essence" however there is a specified finish date

Expert:  Jo C. replied 2 years ago.
Yes, and he is in breach of that but it is not a material breach striking at the heart of the contract because it does not contain the words 'time is of the essence.'
If you want you say about his working practices are correct then he is almost certainly committing some offences. You are not under any obligation to report them. There is no offence in the UK of failing to report a wrongful act. However, you can do so.
In terms of the delay, if you want to carry on with him then you need to make time of the essence in the contract and give him a specific date to complete. That date needs to be far enough in the future to create a situation where he cannot deny that he had a reasonable period of time.
If you want to escape the contract then the fact that he is trading under a defunct name and not paying VAT would give you an escape route as this contract is tainted with illegality.
Can i clarify anything ?
Jo
Customer: replied 2 years ago.

The contract is a standard JCT home owners contract and there is no option to vary it. Thus is it not possible to include the terms suggested.

How can someone not be in material breach of contract when there was a very clear date set

Expert:  Jo C. replied 2 years ago.

It is not a material breach striking at the heart of the contract because it does not contain the words 'time is of the essence.'