Landscaper wants payment for work not completed

Kashkai

You're not cheering me up any Sonnen:(:D

This guy agreed to complete the works in 2-3 weeks weather permitting. It took him 3 weeks to do the patio, there's been sod all done on the drainage and no attempt at the garden. I'm fairly certain he's fecked off at this stage but like I said, I'll give him another week to make an appearance after which I'll be sure that I can write him off (incl. any demands for payment) and get someone else in to re-do/complete the works. One query that I'd have is that should I make an attempt to contact him and give him a deadline within which to complete the works or should I leave him be and just wait and see what, if anything, happens by next Friday?

The only good thing to come of this is that I didn't entertain his requests for an "interim payment of €10,000" and his promises of completing the works at a later date.

I'll post up a few photos later today to show the short comings in the patio, planting and drainage.

smashey

Hi Dave, another mess. It has been tough going for you down there.

Anyway, I'm glad to see you didn't fall into the old trap of paying him the money on the basis that he'd be back later. I have said on the C&P forum many times, do not pay in full until you are happy that the work has been completed to your satisfaction. Even then, always withold a percentage for a few months to a year for defects.

Minder

Sonnenblumen wrote: »

Finally I disagree with your opinion, there are indeed penalty clauses for several areas of contracts, a very simple example would be charges for late completion.

Charges for late completion are known as Liquidated and Ascertained Damages - LADs or LDs. They are supposed to represent a reasonable assessment of loss (ascertained in advance) due to one party to a contract because of a breach of contract by the other party. They cannot be punitive, ie used to punish the party in breach. If that is too convoluted for you, look it up.

As for your arguments about costs, I simply said that if Dave has paid enough to cover the mens wages, that's one less argument he has to face from the builder. Nothing else. I'm not suggesting he make an additional payment to cover wages, but if three men working for three weeks on & off cost 7k, I'd be very surprised.

Sonnenblumen

Minder,

I'm not agreeing with your position so lets give it a rest. I'm more than familiar with contracts and if you want to be helpful, be a little more meaningful with the OP.

You seem to be suggesting (not knowing yourself) to OP to determine the wages? The OP is grappling with a scenario where somehow things have become screwed up. Wasting time on determining wage costs will achieve nothing for resolving the bigger picture.

old boy

wage costs are and should be the least of the ops problems, workers could be getting x per hour, the op has to be charged y per hour due to prsi etc, it could be that they are working cash in hand, what the op needs is legal advise as i have already posted. until then all he is getting is as the old people used to say is the word of fireside lawyers, O.P. get a LAWYER a.sa.p.

Minder

Sonnenblumen wrote: »

Minder,

I'm not agreeing with your position so lets give it a rest. I'm more than familiar with contracts and if you want to be helpful, be a little more meaningful with the OP.

You seem to be suggesting (not knowing yourself) to OP to determine the wages? The OP is grappling with a scenario where somehow things have become screwed up. Wasting time on determining wage costs will achieve nothing for resolving the bigger picture.

Which part of my position are you not agreeing with? My first post where I suggested assessing amounts due by reducing scope and deducting the costs of remediation? Or the post about Liquidated Damages and penalty clauses which you clearly know nothing about? Or are you still whining about a small point on wages?

Your advice is nothing more than information repeated earlier in the thread. As a professional landscaper, I thought you would have more to offer. BTW, don't lecture me on meaningful responses when your first meaningful post on this thread is to suggest the OP made an error of judgement in choosing a contractor. Very helpful!

The Sweeper

The "agree to disagree" fairy is going to visit this thread with her big boots of judgement in a few posts I reckon...

Minder

Liquidated Damages 101

Monetary compensation for a loss, detriment, or injury to a person or a person's rights or property, awarded by a court judgment or by a contract stipulation regarding breach of contract.

Generally, contracts that involve the exchange of money or the promise of performance have a liquidated damages stipulation. The purpose of this stipulation is to establish a predetermined sum that must be paid if a party fails to perform as promised.

Damages can be liquidated in a contract only if (1) the injury is either "uncertain" or "difficult to quantify"; (2) the amount is reasonable and considers the actual or anticipated harm caused by the contract breach, the difficulty of proving the loss, and the difficulty of finding another, adequate remedy; and (3) the damages are structured to function as damages, not as a penalty. If these criteria are not met, a liquidated damages clause will be void.

Kashkai

Lads,

No need to fall out over this thread. Imo I don't have to pay this guy another cent as he has:

(a) broken his own contractual terms, i.e. 30% upfront (which he received) and the balance on completion - as the project is a long way from completion, I don't owe him a cent.

(b) he has made a botch job of the patio, the planting is a joke and of poor quality (never mind his €1,000 planting fee :rolleyes:), he has left out several notable features (pergola etc), he has made a pathetic attempt at the drainage and finally, he didn't even attempt to do the garden.

Ergo, he doesn't have a leg to stand on when demanding more money. Smashey was right when he said don't fall into the trap of handing over money on the premise of "I'll be back later to finish the job". As Smashey knows, I was stupid enough to fall into that trap once before with a builder but I learned my lesson very well.

Now can someone advise if I should formally write to this guy demanding he finish the works or can I go ahead with remediation/completion of the project without further recourse to him (seeing as he's gone awol since last Friday week)? I just don't want to go ahead with the works myself if the Landscaper turns up at some point and then tries to accuse me of breaching the contract.

As for finishing the works, I found out yesterday that my Dad (who drives heavy machinery for a living) also knows how to drive a digger so we can do the drainage ourselves and probably do a better job of it than Mr. Landscaper. My brother in law has laid patios in the past and has offered to come up next weekend from Mayo to lift up what's been done and to redo it. Then, all I have to do is get someone in to do the lawn.

Now I'm off to get the camera to take a few snaps of the works to post up later today.

smashey

Prosperous Dave wrote: »

Now can someone advise if I should formally write to this guy demanding he finish the works or can I go ahead with remediation/completion of the project without further recourse to him (seeing as he's gone awol since last Friday week)? I just don't want to go ahead with the works myself if the Landscaper turns up at some point and then tries to accuse me of breaching the contract.

I've been involved in something similar recently. Write to him first with your proposals and give him the opportunity to respond.

2 stroke

Dave, sorry to hear of your difficulties again. 2 possibilities come to mind
1. You found another cowboy.
2. Bob may have had a word in his ear that he had difficulty getting paid on that site. (of course Bob wouldn't mention his own shoddy work).

Minder

Dave,

I believe you need to write to the builder detailing the nature of your dispute and offering him the opportunity to correct the defects. The letter should at least state that no further payments will made until the defects are made good.

If you get another contractor to make good the defects and deduct that amount from the original account, your original builder can argue that he could have carried out the work cheaper. Avoid that situation by formally offering him the opportunity of making good on the works. If he refuses, you have a dispute and can proceed with making good with another contractor.

Is there anything in the contract about duration of the works, completion and making good defects?

laura27314

I think you need to give the builder a chance to make it right unfortunately! It's not nice to have to work with someone who you have had a disagreement with, but I think he may have a leg to stand on if you don't attempt contact. If it were me I would contact a solicitor before contacting a builder.

Laura

Sonnenblumen

Minder wrote: »

Which part of my position are you not agreeing with? My first post where I suggested assessing amounts due by reducing scope and deducting the costs of remediation? Or the post about Liquidated Damages and penalty clauses which you clearly know nothing about? Or are you still whining about a small point on wages?

Your advice is nothing more than information repeated earlier in the thread. As a professional landscaper, I thought you would have more to offer. BTW, don't lecture me on meaningful responses when your first meaningful post on this thread is to suggest the OP made an error of judgement in choosing a contractor. Very helpful!

Have you tried a fish diet?

Sonnenblumen

Minesajackdaniels wrote: »

The "agree to disagree" fairy is going to visit this thread with her big boots of judgement in a few posts I reckon...

Fair enough, but if there's any chance of it happening sooner than later? Otherwise the minder character will be telling you which boot goes on which foot and in which order etc!:eek:

The Sweeper

Thank you for your back seat modding contribution. Strong opinions are permitted - just because someone disagrees with you and requests further clarification of your point doesn't mean I should tell you to all stop speaking to one and other.

Where I WILL get involved in when it degenerates into slapping and hair pulling and, more specifically, name calling.

On which point I'm sure I imagined your 'fish diet' contribution since it's 5.50am my time and I haven't had my coffee yet.

leeroybrown

Hi Dave, in my opinion this thread has reached the point where you should probably be seeking professional legal opinion rather than digging through various differing internet opinions. It'll cost you a few quid but given the amount of money involved and the potential for legal action it would be what I'd be doing.

Kashkai

I've taken some snaps of the patio, planting etc but am having trouble trying to upload them (stupid computer's fault of course ). Must get my 8 year old daughter to show me how to do it

There's no possibility that the Landscaper (who's a Dub based in Meath) and the builder who built (and I use that word loosely) my house (he's a Carlow native based in Castledermot) know each other, and besides, I haven't mentioned to the Landscaper who the builder was so this rules out the query raised that the builder and Landscaper have had a chat and Mr. Landscaper has discovered that I'm no pushover and that I can call in the professionals (Engineers. Solicitors etc) to fight my case when needs be.

I reckon an email setting out my concerns, etc to Mr. Landscaper is the way to go just to cover myself. I don't think he has any intention of returning to complete the works but just to be safe, I'll give him the opportunity, He'll probably try to fob me off with pressure of other work is keeping him elsewhere but I'll give him a deadline and if he doesn't keep to it, then thats that.

I have paid him €7,000 up front and I wonder if he broke even on this amount after the corners he cut. I can't imagine that he'd walk away if he was out of pocket on the job, or else he thinks it'll cost him a lot more than the €13k thats outstanding in order to put the problems right. To date I've gotten the following:

200sq metres of hardcore/804
100 sq metres of cobble
50sq metres of sandstone
17 metres of wall
20sq metres of planting

I reckon the €7k I gave him might have covered the above not allowing for labour, plant hire, Vat.

Anyways, I'm going to try to upload those snaps again.

queenie1

€28K would be extortionate, €20k seems high and from what I have read he seems to be a little ott in requesting additional money, he may have cash flow probs but will have more if customer not kept happy.

Good luck.

Kashkai

Landscaper came back this morning with his merry men (2 weeks to the day since I last saw him) to relay half the patio that had sunk. When the cobbles were taken up, we saw that the sand underneath was pure slush with the amount of water in it. He said it would have to dry out before the cobbles could be relaid. Then he asked me for more money which I said no to, so now they are milling around in the back (probably wondering what to do) and I've got half a patio again. To be fair, what was down would have to be re-done anyways but now its a stand off and I feel that the patio won't be re-done until I hand over the funds (which I won't do btw).

I told him to do the patio, do the drainage and the garden, as agreed, and then we'll talk money. He's refused to bring in more gravel for around the tree (its a sunken pit and needs a least another 1 tonne I reckon), and won't touch the beds so no mulch or weed control membrane there.

B1gft

Get Legal advice NOW. The last thing you need is for the contractor to hand the account to a debth collector. There is some serious collectors out there that you do not want knocking on your door. (There is also some very good one's, knowing your luck, the heavys will come knocking)

It looks to me, the guy broke the contract, get a solicator to write to him, telling him the contract is termanated. Look for your first payment back (which you will have no chance of getting, but he might cut his loses and walk away)
Get your family to do it, get them a pint or two for their work. Gave the wife a few bob and everyone is happy.

BoardsMember

B1gft wrote: »

Get Legal advice NOW. The last thing you need is for the contractor to hand the account to a debth collector. There is some serious collectors out there that you do not want knocking on your door. (There is also some very good one's, knowing your luck, the heavys will come knocking)

It looks to me, the guy broke the contract, get a solicator to write to him, telling him the contract is termanated. Look for your first payment back (which you will have no chance of getting, but he might cut his loses and walk away)
Get your family to do it, get them a pint or two for their work. Gave the wife a few bob and everyone is happy.

Good advice. This is going nowhere, get some legal advice asap. Ask the solicitor how to deal with the contractor. No further contact would be desirable, but hopefully he'll take over all communication with him. Good luck.

edanto

Dave - no update in a week, I'm guessing that he just disappeared after the visit last week to try and get some money?

Kashkai

Actually, no he did come back yesterday and relaid the patio on fresh dry sand, whacked it down and went away with a promise to return this morning with his digger to do the drainage as specified. However, no show today.

He's been on the job since 24th April so its getting ridiculously protracted now (he originally estimated 2 weeks for the whole job). Even if the drainage and the garden was done in the next week, the garden won't be usable until mid - late August so my kids will be confined to the front garden where they need constant watching with the road and the boy racers heading to Mondello zooming up and down.

At this stage, he should have gotten the message that he's not getting a penny until the whole project is completed. You'd think he'd just finish the job to get his money.

Sleipnir

I'd say he's hoping to do just enough so that he'll be in a position to demand more money.
"My men worked here for two days and they need to be paid" etc.

Minder

A couple of points about the earlier references to Debt Collection - Legally enforced debt collection is rarely an option in construction disputes while the dispute is unresolved. The process listed below cannot be completed because a court will not enforce recovery against a debtor while a dispute exists and is unresolved.

The court would first have to refer the initial dispute to an arbiter either through a mechanism in the contract such as conciliation or adjudication, or refer the matter to a court for judgement. If the court found in favour of the builder, then a debt collection process may commence.

From here

Initial demand letter to debtor

This letter will threaten legal proceedings unless payment is received within ten days.

Issuing legal proceedings

If a satisfactory response hasn't been received in that period, proceedings are issued in the District, Circuit or High Court, depending on the amount of the debt. The debtor has more time to respond and will either pay up, ignore the notice or decide to fight the case.

Judgement

If no response is given either way, then a judgement (a sworn statement outlining the debt owed and by whom) against the debtor is issued.

Until such time as you have a formal dispute, you don't really need the services of a solicitor. Be clear and concise with your builder - he is in breach of the contract. You can write to him detailing the failures in the work or you can dictate the information to a solicitor and he will write the letter and charge you for the privilage.