(I have removed "misc.legal.moderated" from the Newsgroups
line of this followup to your posting. First of all, your
News server is broken and passed your article along to other
News servers rather than submitting it to the moderators of
misc.legal.moderated as it should have done. Second, it is
usually a bad idea to cross-post conversational articles to
both moderated and unmoderated newsgroups.)

(Kelly E Jones) writes:
He's claiming now that he'll be done by the 30th, but as I said, we
know he's a liar, so I don't put much stock in that. The question is,
what recourse do we have when the 30th comes and goes and the job is
not done? The contract specifies no specific remedies.

You should have demanded that specific remedies for late
completion be spelled out in the contract. Your failure to
do so means that you did not place any specific value on
timely completion at the time the contract was signed, which
means that you are unlikely to be able to win any substantial
compensation for the delays.

It also
mandates arbitration as the mechanism for resolving disputes.

You should not have signed a contract mandating arbitration.

Do we lock him out on the 30th, hire a lawyer, and see what we can get
through arbitration? My sense is that the arbitrator (specified by
the contractor) will probably side with the contractor, since that's
where their business comes from.

You should not have signed a contract specifying that one
side would be allowed to select the arbitrator unilaterally.
Usually, the arbitrator must be agreed to by both sides.

What can we reasonably ask for as a remedy?
How do I go about this?

Tell the contractor you do not believe that the work will be
done by August 30 and demand a written agreement spelling out
the compensation he will make to you based on how late the
work is finished. Tell him that absent such a written
agreement, you will kick him out of the house, pay for the
work done by him to date, and hire another contractor to
finish.

You are, in essence, demanding that he renegotiate the
contract with you based on the fact that he will be in breach
of contract if the work is not finished by August 30.

Of course, you cannot threaten to kick him out and have
someone else finish the work unless you mean it. And such an
act will undoubtedly greatly inconvenience you, since you'll
have to find another contractor willing to pick up a job in
the middle and finish it. You will need to evaluate whether
it's worth it to experience that inconvenience to (a) get a
better contractor to finish the work, perhaps faster than your
current one would, and (b) take a stand on principle and deny
your current contractor the right to continue to profiting
from his own misconduct.

What can I expect from arbitration, if that's the way the go?

It's a crap-shoot, really. And remember that once you enter
into arbitration, you've totally screwed your relationship
with the contractor; do you really want him to continue
working on your house under those conditions?

Let's see.......and you saved maybe $500 by NOT having an attorney draw up
your contract? I hope this will be a learning experience for everyone
listening (and I am not an attorney).


Trip



In article ,
says...

(I have removed "misc.legal.moderated" from the Newsgroups
line of this followup to your posting. First of all, your
News server is broken and passed your article along to other
News servers rather than submitting it to the moderators of
misc.legal.moderated as it should have done. Second, it is
usually a bad idea to cross-post conversational articles to
both moderated and unmoderated newsgroups.)

(Kelly E Jones) writes:
He's claiming now that he'll be done by the 30th, but as I said, we
know he's a liar, so I don't put much stock in that. The question is,
what recourse do we have when the 30th comes and goes and the job is
not done? The contract specifies no specific remedies.

You should have demanded that specific remedies for late
completion be spelled out in the contract. Your failure to
do so means that you did not place any specific value on
timely completion at the time the contract was signed, which
means that you are unlikely to be able to win any substantial
compensation for the delays.

It also
mandates arbitration as the mechanism for resolving disputes.

You should not have signed a contract mandating arbitration.

Do we lock him out on the 30th, hire a lawyer, and see what we can get
through arbitration? My sense is that the arbitrator (specified by
the contractor) will probably side with the contractor, since that's
where their business comes from.

You should not have signed a contract specifying that one
side would be allowed to select the arbitrator unilaterally.
Usually, the arbitrator must be agreed to by both sides.

What can we reasonably ask for as a remedy?
How do I go about this?

Tell the contractor you do not believe that the work will be
done by August 30 and demand a written agreement spelling out
the compensation he will make to you based on how late the
work is finished. Tell him that absent such a written
agreement, you will kick him out of the house, pay for the
work done by him to date, and hire another contractor to
finish.

You are, in essence, demanding that he renegotiate the
contract with you based on the fact that he will be in breach
of contract if the work is not finished by August 30.

Of course, you cannot threaten to kick him out and have
someone else finish the work unless you mean it. And such an
act will undoubtedly greatly inconvenience you, since you'll
have to find another contractor willing to pick up a job in
the middle and finish it. You will need to evaluate whether
it's worth it to experience that inconvenience to (a) get a
better contractor to finish the work, perhaps faster than your
current one would, and (b) take a stand on principle and deny
your current contractor the right to continue to profiting
from his own misconduct.

What can I expect from arbitration, if that's the way the go?

It's a crap-shoot, really. And remember that once you enter
into arbitration, you've totally screwed your relationship
with the contractor; do you really want him to continue
working on your house under those conditions?

On Wed, 13 Aug 2003 15:45:51 +0000 (UTC), someone wrote:


Tell the contractor you do not believe that the work will be
done by August 30 and demand a written agreement spelling out
the compensation he will make to you based on how late the
work is finished. Tell him that absent such a written
agreement, you will kick him out of the house, pay for the
work done by him to date, and hire another contractor to
finish.

Well Jon, that is playing hard ball, and sometimes people who play
hardball, lose. I am as you I believe are, an attorney, and I used to
be a commercial sub-contractor working on big jobs, and I always
thought it laughable how little homeowners would try to throw their
weight around like they had $10 million jobs that would give them that
much leverage.

You are talking an anticipatory breach, and a questionable one as we
have only the hysterical homeowner who somehow "knows" the contractor
is a "liar" OBJECTION OBJECTION as they say.

I don't see how the homeowner is in a position to "demand" any
additional written agreeements. And does he really want the
contractor, who is likely a small business where the owner works on
the job, to stay in the office writing reports when he should be on
the job working?

Only results are typically in the purview of the owner, means &
methods are at the discretion of the contractor. Since it is not time
is of the essence with specified remedies, I'd think that all that
"demand" would do is **** off the contractor, he would tell OP to go
to hell, he would finish the job in his good time, let OP sue for the
delay where there is no time is of the essence.

I think OP only screws himself with a lockout, where OP will be
turning a minor and inconsequential nominal breach (surely contractor
will claim he would have only been a few days late on a 6-month job)
into a major and lengthy one.

A demand for a written plan for completion implies it is possible, and
if it is, there is no obligation for the contractor to provide this
extra service (except with extra compensation) since he is not in
breach. If OP locks out and hires another contractor, can you bet
that 1st contractor will have a different idea what his completed work
was worth (it is NOT NECESSARILY original contract less cost to
complete by others!!!) and will lien the job until it is straightened
out?

I think OP is much too quick on the trigger, is mad about 'delay' and
not having use of his 1st floor even before the due date, just
frustration, he needs a valium and a vacation, and whn he comes back
maybe it will be done!

If I did civil any more, I'd rather represent the contractor on this
one.

-v.

In article ,
v wrote:
On Wed, 13 Aug 2003 15:45:51 +0000 (UTC), someone wrote:

You are talking an anticipatory breach, and a questionable one as we
have only the hysterical homeowner who somehow "knows" the contractor
is a "liar" OBJECTION OBJECTION as they say.

OP here. First, I appreciate the input; thanks.

But, how can you classify a lockout as 'anticipatory breach'? The
contract says he will complete by the 30. If he is not complete by
midnight on the 30th, HE is in breach. If I lock the doors at 12:01
(which is what I meant, perhaps I was not clear) then I am not in
breach at all, correct?

I think OP is much too quick on the trigger, is mad about 'delay' and
not having use of his 1st floor even before the due date, just
frustration, he needs a valium and a vacation, and whn he comes back
maybe it will be done!

I think you're reading me incorrectly. I have no problem with the
contractor taking the full period of the contract (up to and including
the 30) to finish. However, it is clear to everyone that this will
not happen. Two weeks remain (on a 16 week job), and only 30% of the
work has been completed. Items with long lead times (woodstove
(several weeks), hardwood flooring (5 weeks), granite slabs (2 weeks))
have not even been ORDERED yet. I'm not trying to jump the gun, I
just want to be prepared for the inevitable when it happens.

Again, thanks for the input. I realize I mad mistakes in the
contract (no specific remedies, no 'time is of the essence', etc.) and
at this point I'm just trying to figure out the most graceful way to
recover from this. Letting the contractor go along at his pace
without any additional 'motivation' means I probably won't be in the
house until Thanksgiving, which is unacceptable to me.

Kelly

(v) writes:
Well Jon, that is playing hard ball, and sometimes people who play
hardball, lose.

Yes, I believe I pointed that out (in different words) elsewhere in my
posting.

I am as you I believe are, an attorney,

I'm not an attorney.

I agree that locking out the contractor before the 30th would be a
breach of contract. I also agree that locking the contractor out
*after* the 30th would be likely to cause more trouble than it's
worth. You did a much better job of clarifying these points in your
posting than I did in mine.

However, I got the impression, from the OP's postings, that what we're
talking about here is a contractor who really screwed over the customer
and who is pretty dead set on finishing the job *way, way* after the
deadline specified in the contract. So I think the customer has
slightly more grounds for action against the contractor, should August
30 come and go without the work being completed, than you made out in
your posting.

On Wed, 13 Aug 2003 22:17:44 GMT, (v) wrote:

On Wed, 13 Aug 2003 15:45:51 +0000 (UTC), someone wrote:


Tell the contractor you do not believe that the work will be
done by August 30 and demand a written agreement spelling out
the compensation he will make to you based on how late the
work is finished. Tell him that absent such a written
agreement, you will kick him out of the house, pay for the
work done by him to date, and hire another contractor to
finish.

Well Jon, that is playing hard ball, and sometimes people who play
hardball, lose. I am as you I believe are, an attorney, and I used to
be a commercial sub-contractor working on big jobs, and I always
thought it laughable how little homeowners would try to throw their
weight around like they had $10 million jobs that would give them that
much leverage.

You are talking an anticipatory breach, and a questionable one as we
have only the hysterical homeowner who somehow "knows" the contractor
is a "liar" OBJECTION OBJECTION as they say.

I don't see how the homeowner is in a position to "demand" any
additional written agreeements. And does he really want the
contractor, who is likely a small business where the owner works on
the job, to stay in the office writing reports when he should be on
the job working?

Only results are typically in the purview of the owner, means &
methods are at the discretion of the contractor. Since it is not time
is of the essence with specified remedies, I'd think that all that
"demand" would do is **** off the contractor, he would tell OP to go
to hell, he would finish the job in his good time, let OP sue for the
delay where there is no time is of the essence.

I think OP only screws himself with a lockout, where OP will be
turning a minor and inconsequential nominal breach (surely contractor
will claim he would have only been a few days late on a 6-month job)
into a major and lengthy one.

A demand for a written plan for completion implies it is possible, and
if it is, there is no obligation for the contractor to provide this
extra service (except with extra compensation) since he is not in
breach. If OP locks out and hires another contractor, can you bet
that 1st contractor will have a different idea what his completed work
was worth (it is NOT NECESSARILY original contract less cost to
complete by others!!!) and will lien the job until it is straightened
out?

I think OP is much too quick on the trigger, is mad about 'delay' and
not having use of his 1st floor even before the due date, just
frustration, he needs a valium and a vacation, and whn he comes back
maybe it will be done!

If I did civil any more, I'd rather represent the contractor on this
one.

-v.
I agree this is a pretty one-sided contract. Is the completion date
not the expiration date of the contract?

Eventually, there has to be a limit on delays. Should he live with
another 6 months, a year, 5 years? Reason has to enter somewhere.