March 1, 2011
Avoid disputes and get paidBY ROBERT KENNALEY
McLauchlin & Associates
Most disputes that arise in landscape construction arise over what is known as the 'scope of work.' The same can be said about disputes that arise under maintenance and supply contracts. Such disputes are over what the contractor or supplier was supposed to do for his money. Often, the disputes arise where the client says something should have been included, while the contractor or supplier considers it an extra.
Contractors and suppliers thus have perhaps the biggest role to play in creating good contracts, because they can generally do a better job in describing what they are going to do for their money. The clearer the contract specifications, the less likely disputes will occur over what those specifications call for.
Consider the contractor who is retained to install, among other things, a pre-cast stone walkway and driveway. The drawings include curved walkways which tie into the driveway. The client then objects to the gaps in the soldier-course, where the walkways and driveways are curved, requesting that the pavers be cut so that they are as tight as the pavers in the middle of the driveway. You now have a dispute, and your efforts to convince the client that the gaps are standard in the industry may, or may not, be successful.
Consider also the common example of the client who complains that she did not get the fully-planted garden she was expecting. Your efforts to explain that it is not possible to make the perennials and shrubs look full at the installation stage might not solve the problem.
The moral of the story is to make sure the client knows what he or she is getting, through detailed drawings and specifications. It is also important to understand what the courts generally consider to be included, before a written contract might change the basic obligations.
The scope of work includes, of course, what is expressly referenced in the contract, drawings and/or specifications. Work which is necessary or incidental to your contract work will also be included. Thus, for example, you will not be entitled to claim an extra to excavate where you have contracted to install a pavestone driveway. Also generally included in the scope of work is work which is "custom of the trade." Establishing custom of the trade, however, can be difficult: the custom must be so well known that both you and your client would know and understand, prior to entering into the contract, that it would apply. Accordingly, you should not proceed on the basis that 'custom of the industry' will assist you in the event of a dispute.
Anticipation saves aggravation
A contractor is expected to satisfy himself in providing a price to perform a certain scope of work. Accordingly, unless the contract or circumstances suggest otherwise, the contractor is required to anticipate and include for all of his costs of performing the work he is pricing. The contractor should accordingly take care to ensure that anything which is excluded is dealt with expressly in the contract.
Unanticipated subsurface conditions, for example, can be significant to those who work in the landscape industry. If your price presumes no subsurface obstructions or the presence of a suitable sub-base, the contract should say so. If it does not, the client may take the position that you will have to correct the base at your own cost. Similarly, for example, if your price presumes that you will have clear and uninterrupted access to the back yard, you should ensure the contract expressly says so. This is because a fence or air-conditioning unit might be put in your way after the contract is signed.
Document qualifications on drawings
An excellent way to detail what is excluded from your contract price is to place qualifications in that regard on the contract drawings, as opposed to in the contract itself. This will allow you to develop exclusions on a job-by-job basis without having to create, or add to, a lengthy contract. You should be sure, however, to incorporate the drawings, by reference, into the written contract. If you take this approach, you should also ensure that in the event of a conflict between the drawings and the other contract documents, the drawings will take precedence.
You should also take care to understand the extent to which provincial legislation might impose obligations on you in relation to your scope of work, or your contracts. In many jurisdictions, for example, consumer protection legislation has been passed which imposes strict obligations on those who provide services or materials to 'consumers,' which might include virtually every client you might have in the residential landscaping industry.
Taking care to properly describe the scope of work, in as much detail as possible, will go a long way toward preventing disputes. So will ensuring that your contracts meet legislative requirements, such as consumer protection legislation.
Robert Kennaley, McLauchlin & Associates, practices construction law in Toronto and Simcoe, Ontario. He speaks and writes regularly on construction law and contract issues and can be reached for comment at 416-368-2555, or at firstname.lastname@example.org. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.