At QualitySolicitors Oliver & Co we recognise the importance of giving our clients practical, effective advice and this is never more important than where property disputes are concerned. Whether you are a property owner and have encountered problems with a contractor and the quality of the work carried out or whether you are a builder having difficulty recovering payment from your clients, property disputes often require specialist knowledge.

Our team of experts will provide you with this to ensure that, wherever possible, disputes can be resolved without the need for the involvement of the Court. Where negotiation or mediation is inappropriate, however, a robust and vigorous approach is adopted to the resolution of building disputes by adjudication, arbitration, litigation or expert determination as the circumstances may require.

Domestic Property Disputes

Building works in a home can be disruptive at the best of times, even in relation to small or simple projects. Sometimes works are not completed as agreed and owners can find themselves having spent their budget only to be left with either an incomplete or substandard job. Occasionally the builder may either demand more money to complete the work, having already started the job, or may simply leave the project.

As a contractor, it is not unusual for clients to seek to change their specifications half way through a project only to expect the original price quoted to remain the same. Alternatively, they may have agreed to a payment schedule to allow the client to spread the cost of the project over a period of time, only to find that the client is unwilling to pay the last instalment citing build quality or some other unfounded issue in an attempt to avoid payment. In such circumstances, if the contractor has finished the job it can be difficult to recover these payments.

Given the significant potential for disputes to arise, it is important that the property owner and contractor are clear from the outset as to what they require and the results they are trying to achieve. Once a dispute arises a client will often complain that their contractor is not contactable or avoids discussing difficult issues. Conversely contractors complain that their clients do not understand the issues or that there is a difference of opinion as to what was said and what was meant by it.

It is, therefore, sensible to draw up a written list of requirements and have the same agreed by both parties before work starts. The same applies to any variations which are agreed during the works. If you are intending to have some works undertaken to your home you should consider the following points:

1. Who are you contracting with?
It is always a good idea to determine exactly who you are entering into the contract with. Many contractors work as sole traders or in partnership. These are very different business vehicles from companies with regard to how you are able to go about making a claim against them and your chances of recovering any due sums upon conclusion.

2. Is the contractor insured?
Always ask whether or not the builders are insured for the works which they are undertaking and, if so, which insurance company they are insured with.

3. Get everything in writing!
When it comes to payment always make sure that you get a receipt and that you keep it safe. This is particularly important when paying in cash. Never rely upon the goodwill of the contractor you are entering into business with. Always ensure that your agreement and payment are fully documented.

4. What to do in the event of a dispute arising?
In the event that you have a dispute with your contractor the first thing you should do is have a full and frank discussion with them. It is surprising how often people turn first to their solicitors without fully explaining to their contractor exactly what the problems are. It can be quite difficult to have that conversation, particularly if you are disappointed with the results and tempers become flared. As a general rule you should provide the contractor with a reasonable opportunity to rectify the problems which you have raised. There are of course circumstances in which it would not be reasonable to wait, for example if your home is left in a dangerous condition and the contractor has simply walked out on the job. In such circumstances you may want to instruct a solicitor immediately to provide advice as to your available options and to ensure that you are not later criticised in any claim which you make against the contractor.

5. My builder has left the site-what should I do?
If you and your builder have parted ways it is often sensible to obtain a report from an independent surveyor to assess the level of work completed and what further works are required. This is particularly relevant in large or expensive contracts with costly additional works required. In cases where the cost of the surveyor is prohibitive in its own right, it is important to make a detailed note of all the works agreed and specify which have been completed satisfactorily and which remain to be completed or have been completed to below the standard expected. If employing a new contractor to complete the works, it is again important to demonstrate that you have shopped around to find the most reasonable quote and to obtain an opinion from those builders as to any defective work.

6. Do I have to take the matter to Court to get it resolved?
There are a range of options available to resolve the dispute, including mediation and arbitration as well as other forms of alternative dispute resolution. A mediator can act as an independent middle party to whom both you and the contractor will explain your relative positions. The mediator will then try to reach a conclusion that works for both sides. This can be useful where the works have ceased as a result of the dispute and you are left with a part completed project. A mediator will not provide a definitive decision but may help the client and the contractor come to an agreement to resolve the dispute.

7. What if that does not work?
If the dispute cannot be resolved through alternative dispute resolution, court proceedings may be necessary. Such proceedings by their very nature can be complex and expensive for both parties and it is important that you take legal advice before commencing any such proceedings. However, should it be necessary, we will provide you with sensible clear advice to try and make the process as straightforward for you as possible.

Commercial Property Disputes

While a number of the issues already referred to also arise in commercial property disputes, there are often further considerations that can make such disputes even more complicated. Many commercial building projects will involve more than one contractor and time will invariably be of the essence. A delay with one contractor while resolving a dispute could mean that you lose the window of availability with subsequent contractors, further delaying the project and potentially incurring further cost.

The use of alternative dispute resolution perhaps has a greater application in commercial property disputes. Often the contract will make specific provision for arbitration, mediation or adjudication. Use of mediation, adjudication or arbitration can often prove to be a cost effective method of resolving the issues and will give the parties the opportunity to lay down the guidelines for the their future conduct while working together on the remainder of the project.

In the event that the dispute cannot be resolved by alternative dispute resolution, or if such methods are deemed to be inappropriate in the circumstances, then the matter can be resolved using the formal court process. It is more typical in commercial contracts that the value and or complexity will require the case to be heard by the Technology and Construction Court. In such cases, we have the specialist knowledge available at QualitySolicitors Oliver & Co. to guide you through the process.

Conclusion

In order to try and avoid or at least minimise the risk from any form of building dispute it is imperative that the contract be documented in writing, including any variations that take place during the works, and that the parties are each clear as to what is required and expected of them by the other party. Effective communication can resolve many issues before they become a problem. If you require advice in relation to the initial drafting of a comprehensive building agreement or in facilitating a resolution to a dispute that has already arisen, please contact either John Loney or David Sewell.