Contract with no timeline?

[itsamberduh]

What is the name of your state (only U.S. law)? MA

Long story short I hired the wrong person to put in the foundation for my addition. The guy said the project was "easy" and would only take a few days. It's been 3 weeks. My lumber is being delivered in 4 days. I need the foundation to be finished in order to acquire the building permit (foundation and building permits are separate in my town, and the foundation must be completed before getting the building permit).

The contract we signed with the foundation guy didn't specify a date for completion of the project. He's flaking out on us and decided to take a 2 week vacation from our project, putting us way behind schedule, possibly making us unable to finish the project before it gets too cold. Not to mention that he made a HUGE mess of my backyard and it is totally unusable until he gets in here with his back-ho and rights the mess.

The contract also didn't specify that the foundation would be insulated, and I've recently learned from the building inspector that ALL foundations in this state must be insulated per the states building law. The foundation guy wants additional money to purchase materials and do the work. How can he provide a quote to build a foundation that would be illegal in this state?

Can I fire him and hire someone else to finish the job? I've only paid him half of his fee since only half of the job has been completed. If I fire him because he can't get the job done quickly enough and is taking a 2 week vacation, can he take me to court to get the remaining portion of his fee?

 

[NC Aggie]

Well I think you have just cause to terminate your contract with this contractor. However, I would be very skeptical of the quality of work that has been completed considering that it appears he doesn't have the adequate competence for this type of work. When you're talking about a house foundation, there are some serious consequences if the foundation isn't installed properly. You mentioned the installation issue, but there are other components to be mindful of including proper compaction of soils, concrete placement, quality of concrete, etc. So even thought it may seem easy enough to part ways with your contactor and move on, if you hire a new contractor, they may determine some issues with the work that has already been done and you're out more money that you originally budgeted. There's also the possibility that a new contractor may not see any obvious deficiencies but may prefer to rip out the concrete and start anew. Is this a slab on grade foundation or crawlspace?

 

[tranquility]

I do not find good cause so much as poor crafting of the contract. The OPs main remedy is to write better contracts and research who he contracts with better. In this case, because of the state, the OP may not have as many remedies, and, none regarding what might happen.

Does the contract have a provision to get permits or do all work to industry standards or some such verbiage indicating a requirement to do the work to legal standards? If so, it should be to code. If not, it will be very hard to argue it belongs in the contract. Here the anticipatory repudiation might work to motivate the other party, but it could also create a more adversarial relationship with the contractor.

Time of performance is a necessary element of a contract. The courts may supply one if the contract does not. The court will use the guideline of reasonable. By not putting specific time lines in the contract, what would a court find reasonable? Usually, way, way longer than the person wanting the work done feels is reasonable. Here too. What is a reasonable time? No way should it be expected to get done in a month unless specific goals or timelines are in the contract. Many contracts have performance goals related to time and ultimate cost.

The OP might send a letter listing his concerns and what he feels the contract requires. Insulation, by tomorrow. Give the contractor a reasonable time to reply, usually 10 to 30 days, depending on what is reasonable, and explain how he is going to perform. Determine if the reasoning and issue are related to some state reasons regarding anticipatory repudiation. It may not solve the problem, but it will put the problem on the contractor's front burner.

From Cavanagh v. Cavanagh, 33 Mass. App. Ct. 240:

Restatement (Second) of Contracts Section 227, comment b (1979). We conclude that Paul was obligated to make the final payment within a reasonable time.

2. The consequence of Paul's repudiation. A basic proposition is that Lindsay may only maintain an action against Paul for breach of the marital agreement if he has failed to pay her within a reasonable time. What constitutes a reasonable time is ordinarily a question of fact, see Charles River Park, Inc. v. Boston Redev. Authy., 28 Mass. App. Ct. 795 , 814 (1990), and such a determination has not been made in this case. We need not decide what is a reasonable time according to our own judgment, see C.J. Hogan, Inc. v. Atlantic Corp., 332 Mass. at 329, nor is there a need to remand the matter on this question, compare Barclay v. DeVeau, 384 Mass. 676 , 684-686 (1981). Here, Paul's repudiation of his obligation to make the final payment permits a judgment in Lindsay's favor.

Outside of the commercial law context, [Note 5] Massachusetts has not generally recognized the doctrine of anticipatory repudiation, which permits a party to a contract to bring an action for damages prior to the time performance is due if the other party repudiates. Daniels v. Newton, 114 Mass. 530 (1874). Compare Nevins v. Ward, 320 Mass. 70 , 73 (1946). Although the Daniels decision itself has never been explicitly overruled, several exceptions to its holding have developed. [Note 6] In Collins v. Snow, 218 Mass. 542 , 545 (1914), the

Page 244

court held that, despite the rule of Daniels v. Newton, supra, and despite the fact that performance was not yet due, a suit in equity for breach of contract was maintainable when a party had repudiated its obligations. The exception was based on the premise that, in equity, relief can be given based upon events which occur after the commencement of the suit and "which grow out of the matters on which the [complaint] is founded." Collins v. Snow, supra. See and compare Tucker v. Connors, 342 Mass. 376 , 383 (1961), in which the plaintiff buyer of land brought a suit for specific performance of the defendant seller's promise to convey before performance was due; in that case, Daniels v. Newton, supra, was held not to prevent the court from affirming and modifying an appropriately fashioned decree compelling conveyance of a parcel of land. Compare Schilling v. Levin, 328 Mass. 2 , 6 (1951).

 

[itsamberduh]

The foundation is a crawl space type of foundation. We had an inspection after the hole was dug, and the town building inspector said the soil was properly compacted. We also had an inspection after the walls and footings were poured, and again, those passed inspection. The concrete was bought and paid for separately, the foundation guy only put up forms, helped pour the concrete and smoothed it out.

I have called the contractor and told him that I need the job done by Friday for various reasons (other contractors coming in being the main one) and he basically told me he was on vacation and I would have to tell them to wait and he was going to do another job before mine.

The contract we signed with him is his standard contract that he uses with his business. There's no fine print on it anywhere, it basically states what's to be done and the price. No timelines. Nothing about provisions to break the contract or what happens if the contract is broken.

 

[Zigner]

It seems to me that you contracted for a properly built foundation. You shouldn't have to pay more to actually GET a lawful foundation.

 

[NC Aggie]

The foundation is a crawl space type of foundation. We had an inspection after the hole was dug, and the town building inspector said the soil was properly compacted. We also had an inspection after the walls and footings were poured, and again, those passed inspection. The concrete was bought and paid for separately, the foundation guy only put up forms, helped pour the concrete and smoothed it out.

I have called the contractor and told him that I need the job done by Friday for various reasons (other contractors coming in being the main one) and he basically told me he was on vacation and I would have to tell them to wait and he was going to do another job before mine.

The contract we signed with him is his standard contract that he uses with his business. There's no fine print on it anywhere, it basically states what's to be done and the price. No timelines. Nothing about provisions to break the contract or what happens if the contract is broken.

Okay, well sounds like the work up to this point meets standards which likely means you would not incur additional expenses if you walked away from your contract with this contractor. I would send the contractor a certified letter requiring him to commence work within 3 days and completed by a specified date or you will terminate contract. If he doesn't respond or meet deadline, make a reasonable judgment on whether you should proceed. I shy away from offering advice that is ones own opinion or a judgment cal. However, based on my experience with construction work, personal scheduling conflicts (vacation, other jobs, etc) is not an excuse for the delay in completing a project. I think most courts would agree if the matter reached the courts.

 

[tranquility]

I would send the contractor a certified letter requiring him to commence work within 3 days and completed by a specified date or you will terminate contract. If he doesn't respond or meet deadline, make a reasonable judgment on whether you should proceed. I shy away from offering advice that is ones own opinion or a judgment cal. However, based on my experience with construction work, personal scheduling conflicts (vacation, other jobs, etc) is not an excuse for the delay in completing a project. I think most courts would agree if the matter reached the courts.

Three days will NOT be considered "reasonable" in these circumstances. I guarantee that if the OP sent a letter and then went to another for the work, he would lose to the contractor in the lawsuit.

The contract is lousy. No time? No description, in detail, about what is to be constructed? No mention of doing the work to code in the contract? Terrible. Yet, that's what we have.

The OP, three weeks ago, contracted for a foundation. We know the statement, "The guy said the project was "easy" and would only take a few days." is worthless per the parole evidence rule.

The contract we signed with the foundation guy didn't specify a date for completion of the project. He's flaking out on us and decided to take a 2 week vacation from our project, putting us way behind schedule, possibly making us unable to finish the project before it gets too cold. Not to mention that he made a HUGE mess of my backyard and it is totally unusable until he gets in here with his back-ho and rights the mess.

Contractors take vacations. If it was so important to get it done immediately, it should have been in the contract. Maybe a bonus for finishing before a date certain.

This thing is a mess because of the lack of proper vetting up front. There is a contract on the table. If the amount is of any size, an attorney will have to come in to look at it. Self help through cancelling the contract or the like is going to cost the OP more money than it's worth.

 

[NC Aggie]

Three days will NOT be considered "reasonable" in these circumstances. I guarantee that if the OP sent a letter and then went to another for the work, he would lose to the contractor in the lawsuit.

Under normal circumstances, 3 days would not be long enough but considering that the contractor has offered no reasonable explaination to why work was halted is justifiable IMO to ask him to commence to the completion of the work within 72 hours. Granted, there may be circumstances that O.P. has not shared to explain this. However, he does have an obligation to see that work is carried out within satisfactory time period.

 

[itsamberduh]

The contractor went on vacation, which is why he is not currently working on the project. We didn't know when we hired him that he was going on vacation and he only mentioned it to us after he'd stopped working on the project. We called to find out when he was hoping to be finished, he told us we'd need to spend additional money immediately on insulation (which is required for a legal foundation apparently) and then told us he'd be on vacation out of state and would see us in two weeks.

If I send him a letter now telling him to commence work in three days, he will still be on vacation.

Although the foundation has passed inspections up until this point, I'm not satisfied with the work. There are only 3 sides to the foundation as it is an addition off the back of our house. It is only connected to our old foundation in one spot -- there needs to be about 6 more inches of concrete to make it connect in the other place it's supposed to. The new foundation is also about 4 inches lower than the old foundation, which creates interesting challenges when building.

The contract DOES spell out what is supposed to be done, just not when it is supposed to be completed by or what would happen if we were to break the contract. It does not say that the foundation will be insulated, or will match the height of the pre-existing foundation. We did not foresee this to be a problem, since the contractor understood before hand that the foundation is for an addition. The insulation issue is going to cost us additional money, which seems strange because in order to make a legal foundation for a dwelling that is up to MA state building codes, it must be insulated. We did not know that prior to signing the contract.

On a very small side note, the contract also states that he is to move our deck, move a small maple tree, and move our shed. The deck was damaged during the moving process (he cut various pieces off of it to make room for chains) and the tree was moved, then ran over by his equipment, so it is now dead. I suppose the contract never said that the deck was to be moved undamaged and that I would like the tree to remain alive.

 

[tranquility]

We called to find out when he was hoping to be finished, he told us we'd need to spend additional money immediately on insulation (which is required for a legal foundation apparently) and then told us he'd be on vacation out of state and would see us in two weeks.

Insulation is not required, frost protection is--with exceptions. While we have assumed an exception does not apply and/or by "insulation" you mean the requirements of the building code, that may not be the case.

If I send him a letter now telling him to commence work in three days, he will still be on vacation.

You can't "tell" him anything. The only legal thing you can do is *ask* if he intends to complete the contract. Google anticipatory repudiation. While MA does not favor the process, in some circumstances it is allowed. This might be one of them.

Although the foundation has passed inspections up until this point, I'm not satisfied with the work. There are only 3 sides to the foundation as it is an addition off the back of our house. It is only connected to our old foundation in one spot -- there needs to be about 6 more inches of concrete to make it connect in the other place it's supposed to. The new foundation is also about 4 inches lower than the old foundation, which creates interesting challenges when building.

You want MORE than the building code when you signed such a poorly defined contract? Doubtful that is going to be reasonable. Your option is to sue for breach.

It does not say that the foundation will be insulated, or will match the height of the pre-existing foundation. We did not foresee this to be a problem, since the contractor understood before hand that the foundation is for an addition. The insulation issue is going to cost us additional money, which seems strange because in order to make a legal foundation for a dwelling that is up to MA state building codes, it must be insulated. We did not know that prior to signing the contract.

If the code does in fact require this, I'd say it is part of the contract. I don't know about the same height issue, that is even more of an argument.

Contract, bad. Now what?

Since a foundation is forever, an attorney has to be brought in. Arguing facts is not going to help as the court will supply the missing terms. I'd start gathering all the evidence I could. I bet this is going to court.

 

[itsamberduh]

It was my understanding from speaking with the building inspector that insulation is what the building code calls "frost protection".

The building inspector is the one telling us we need insulation to meet the MA state code.

 

[itsamberduh]

Since a foundation is forever, an attorney has to be brought in. Arguing facts is not going to help as the court will supply the missing terms. I'd start gathering all the evidence I could. I bet this is going to court.

I'd like to avoid suing the guy because that's going to take a long time and time is sort of the issue in this whole thing. I'd really like to just hire someone else to finish the job (and finish connecting the darn thing) and part ways with the original contractor. I'm worried about what he can potentially do if I do that -- can he take me to court for the remaining portion of his fee? He's done roughly half the work up until this point, so I've paid him half of his fee. I've paid for all of the concrete separately.

 

[tranquility]

He can sue you for what his profit would have been. Plus, compensation for any purchases he made which now belong to you.

There is no legal method or magic words to get you out of your contract quickly.

Info edit:
I'd look directly at the codes to find out. Some relevant ones might be found in the Q&A:

54.00 Foundations

Q. What frost protection is required for an accessory structure? I am finding it difficult to believe that frost protection of a foundation is required only on an accessory structure greater that 400 sq ft in floor area. It used to be 120 sq ft in the 6th edition. Would this allow for a 20 ft by 20 ft detached garage to be built on a slab? Also, would there be any wind requirements on the same 20 ft by 20 ft garage?

A. No, a garage needs to be on a frost protected foundation per a code change effective January 1, 2008. However, an exception to code sections 1805.2.1 and 5403.1.4.1, Frost Protection, does allow a 400 sq ft freestanding accessory structure to have an unprotected foundation. This does not mean though that a 400 square foot structure can be placed on, and unattached to, a slab or concrete blocks as one can see in Section 5401.2, Requirements, which states that “foundation construction shall be capable of accommodating all loads according to Section 5301 and transmitting the resulting loads to the supporting soil.” Clearly this can be achieved while not conforming to frost protection requirements, but it indicates that all foundations (including those for accessory structures) need to be considered with appropriate attention and detail to comply with the code.

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Q: Where does the Code cover sill plates and fastening?

A. See Section 5403.1.6.