Without getting into it, I recently lost my shirt on job where the owners asked for a lot of changes, then would not pay. My fault, as I got behind on the paperwork. Live and learn. Anyways, my question has do with the legality of the 1 year warranty standard to my contract. I have no intention of honoring it. Owners issued a stop work basically at the end of the job; would not pay for requested changes and still own a small % under the original contract. Am I legally obligated to honor the warranty even though they “broke” the contract and have not met their financial obligations under the original agreement? Again, I am cutting my losses and have no interest in trying to get any money out of them. Their bad Karma… Thanks.
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Replies
typical answer, need to talk to a lawyer.
as a tavern lawyer, if the contract was cancelled, it wasn't completed, ergo no warranty.
bobl Volo, non valeo
Baloney detecter WFR
"But when you're a kibbutzer and have no responsibility to decide the facts and apply the law, you can reach any conclusion you want because it doesn't matter." SHG
I've read other discussions of this type several times and it is likely that you must still honor the warranty. FWIW, how did they issue a "stop work order"? Was that in accordance with some provision of the contract, or did they just make that up?
Basically they said at a meeting, "we are issuing a stop work order and severing our business realtionship". I would hope that since the work was never completed officially (99.5%) and I did not receive all money due to me under the original agreement, that the contract was voided. There was no provision for such in the contract.I use the contractors legal kit contract. Below is part of my contract:"If work is stopped due to any of the above reasons (or for any other material breach of contract by Owner) for a period of 14 days, and the Owner has failed to take significant steps to cure his default, then Contractor may, without prejudicing any other remedies Contractor may have, give written notice of termination of the Agreement to Owner and demand payment for all completed work and materials ordered through the date of work stoppage, and any other reasonable loss sustained by Contractor, including Contractor’s Profit and Overhead at the rate of 20% on the balance of the incomplete work under the Agreement. Thereafter, Contractor is relieved from all other contractual duties, including all Punch List and warranty work."I think the last sentence covers it. I suppose I should send a registered letter of termination.
Edited 1/17/2007 10:31 am ET by hmj
while you may not like it.go talk to a lawyer with construction experience.you apparently have nothing in writing, they can calim you never finished the work.
bobl Volo, non valeo
Baloney detecter WFR
"But when you're a kibbutzer and have no responsibility to decide the facts and apply the law, you can reach any conclusion you want because it doesn't matter." SHG
If work is stopped due to any of the above reasons (or for any other material breach of contract by Owner) for a period of 14 days, and the Owner has failed to take significant steps to cure his default,
OK, the owner did that.
then Contractor may, without prejudicing any other remedies Contractor may have, give written notice of termination of the Agreement to Owner. . .
Did you give the notice? If you didn't then you have not triggered
Thereafter, Contractor is relieved from all other contractual duties, including all Punch List and warranty work."
Dot dem TEEs, cross dem EYEs!
An attorney may disagree. Your milage may vary. I did NOT spend the night at Motel 6. I wonder if the above is even worth what you paid for it. I'm only 12yo.SamT
So much of the success of a company is not determined by degrees but temperature. gb93433 83537.46
A quick and dirty legal opinion, worth at least as much as you are paying me for it, is that when a contract is materially breached (i.e. by the customer not paying), the other party (i.e. you) is relieved from his obligations under the contract. So, if he didn't have a legitimate reason for non-payment, and the amount is not trivial, you would have no warranty obligations. You should consult a local lawyer, since situations vary from state to state.
From another that has been to court on this issue.
When a party breaks a lease contract all deposit monies are forfeited and the contract is considered null and void .
On a counter suit that was not considered because of the prior was established first .
Kinda the same road.
Tim
The quick and dirty explanation I've received elsewhere is that, just because one party breached the contract in some way doesn't entitle the other party to breach it in whatever other way they choose. If they didn't pay him, then he goes after the money in using remedy allowed by law. If the work he did needs warranty work, then he may still be legally obliged to perform it.
Right or wrong, doesn't matter much to me. My contract reads differently and I'm probably in a different state. If
I have no idea about the legalities of your situation. But it makes me wonder...
What if, in FUTURE contracts, you wrote in that you would not offer the warranty unless you completed ALL the work. (Or something to that effect)
You could always honor a warranty if you WANTED to in the future. But a clause like that might be able to protect you from someone who bailed on you like these folks did.
Are they asking for warranty repairs?
How were you notified?
Joe H
No repairs, but I don't really want to sink any more money into this if something goes up... I found out in a Monday meeting with them. I will send a registered letter notifying them of termination of agreement. Can't hurt
Before you send them anything, please talk to a lawyer so you fully understand your obligations. As SHG pointed out these things vary state by state and it could be construed as you terminating the contract and you may be on the hook for warranty stuff.
The nuances of each states laws are critically important and that paragraph from the contractors legal kit may or may not be valid in your state or in your situation. We are all just arm chair lawyering here. Some money spent now may save you money later.
Bruce
hiker....<<<As SHG pointed out these things vary state by state and it could be construed as you terminating the contract and you may be on the hook for warranty stuff. >>> uh.. that would be SMSlaw....
i know.. seen one lawyer, seen 'em all..
i think shaggy is waiting for the check to clear before he enlightens usMike Smith Rhode Island : Design / Build / Repair / Restore
Mike,
Thank you for your correction. I think Taunton should put him on retainer and open a legal file. Then everytime he writes you need to get a lawyer he gets $100.
Bruce
Laws vary from state to state, as does interpretation of contracts.I practiced law a few lifetimes ago, and not in your state and not in the construction area.From the little bit you posted, to be able to claim any remedies AND to (maybe be able to) claim no warranty responsibility, you have to send the notice.Read the whole contract carefully and dot your i's and cross your T'sAnd note: state law may well over-ride such a disclaimer of warranty provision in a contract - that's why you need to talk to a lawyer.The "general" rule is that parties are free to enter into any contract they wish.The reality is that consumer laws often over-ride such freedom of contract because the "big boys" include all sorts of overbearing bs (I used to draft those contracts for a couple of "big boys") and courts and legislatures try to avoid harsh results.Finally - you don't want a "void" contract. That would typically mean neither side is held by anything in it - it is void, gone, de nada. (Again, results may vary from state to state.) If an issue then comes up on the work, if the contract is void, then the court gets to decide what the terms of the "real contract" - the "agreement between the parties" really were.You don't want that.Note to Tavern lawyers:Be sure your contract has a phrase to the effect that "if any term of this contract is deemed void or unenforceable, the remaining portions shall remain in full force and effect."The reason it's called "boiler plate" isn't because it's hack language - it's because it is tough - bullet proof - you want ALL applicable boiler plate!
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I know that this flies in the face of every post you have heard, but don't talk to a lawyer about this. You are just spending more money on an already painful situation. Just let it go.
From a practical standpoint, these people are not going to call you up to work on their house. Why would they bother? You aren't going to come.
Could they come after you legally? Under some weird circumstance, they probably could. They would do this regardless of what steps you take now. And they would probably lose and risk a countersuit for the balance of their payments. This doesn't make much sense.
Schelling,
I understand your logic of just letting go. I know I have let some money go just be done with a situation. It seems to me the issue of greater importance is that he does not understand his contract and how it impacts him. I guess I consider having a contract that he fully understands and knows what his rights, protections, and obligations are is more significant than the nature of the current dispute.
It seems to me he should visit with a construction attorney to make sure his contract is valid. In Texas, state law limits the exclusions one can place in their contract. For instance one cannot install warranties conditions that are less than state mandated warranties. I have to warranty structural items for ten years and everything else for two years. When I use a new sub, I still get one year terms on their contracts and have to give them a lesson on State building laws.
It seems to me that hmj does not know his state laws and he needs to. This forum is not the place to get legal advice.
Bruce
Hear Hear!
So many in Texas have never heard of the TRCC. You mention ten year on the framing and they look at you with a dumb expression.
It will catch up to them though.
Yes, the TRCC-fog a mirror and you are contractor. I am not so sure the TRCC will be the mechanism that catches up to anybody. I think a really aggressive lawyer in a big subdivision will have more impact or a few more Sandra Bullock type cases.
"From a practical standpoint, these people are not going to call you up to work on their house. Why would they bother? You aren't going to come."That happens far more than you might suppose. The famous mold case in Texas is an example. The HO denied the contractor access to fix or inspect a problem all the while running sprinklers to feed the mold and initiating a suit against him.
It happens so often that several states have now instituted laws requiring that HO grant sufficient reasonable time and access for a contractor to fix a problem before they can initiate any warrantee lawsuits.
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There are places in Texas that still do not require a building inspection.
You are correct, but state law requires you to build to a minimum of IRC2001 and you still have to have 10 year structural and 2 year everything else warranttees-regardless of inspections.
Building in certain areas around here is the wild west, but even without inspections, you are still on the hook-at least on paper.
warantee should still be honored
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How big is the job?
I would be much more inclined to spend a few hundred consulting with a lawyer if the job were a $1.1m full house gut and remodel, whereas if you built a 10x12 deck for $3,400 and they stiffed you out of your last payment of $350 I would let it go.
Jon Blakemore
RappahannockINC.com Fredericksburg, VA
I'm no lawyer, but if the contract is clear on work performed, payments, dispute resolution, and termination, refusal to pay is a breach of contract and voids your warranty.
Check with a lawyer to be sure regarding your specific contract for this specific project and client.
I would honor the warranty and hope that they DO call you do some punch list or warranty work. You can then make it clear to them that when they pay up on their change orders, you will be happy to take care of their problems. At that point, you haven't breached anything. The contract protects BOTH parties, not just you or them.
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