Tag Archives: residential construction

Selecting the Right Home Improvement Contractor in Massachusetts

By on August 14, 2017

Selecting a contractor for a home improvement project is both exciting and fraught with peril. The right one can deliver your dream home, and the wrong one can make your living space a nightmare for an extended period of time.  Fortunately, Massachusetts maintains strong consumer protections against the latter in M.G.L. c. 142A, the Home Improvement Contractor statute.

Contractors are required by law to include specific provisions and notices in contracts with consumers. Homeowners should thoroughly investigate the contractor up front and be well-versed in their rights. 

Construction consumers should consider some practical tips is selecting their residential construction or home improvement contractor:  

(1)      Do thorough research and get multiple quotes. Many websites provide reviews and commentary on contractors from prior customers, such as yelp and angies’s list.

(2)      Make sure the contractor you choose is registered as a Massachusetts home improvement contractor;   

(3)      Verify that the construction supervisor the company plans to use to oversee the project day-to-day has a valid construction supervisor’s license; and  

(4)      Insist upon a complete written contract, signed by both parties, prior to making any deposits or starting any work.  At a minimum, your contract should include the following information:

          a physical address for the contractor, not just a post office box, along with the name of the salesperson and the construction supervisor for your project;

          a start date and a completion date for work, so that you don’t find yourself lower on the contractor’s priority list than other projects soon after making your deposit;

          a clear scope of work, including as much detail as possible.  If you’ve agreed upon certain brands for hardware or fixtures, be sure those brands appear in the contract; and

          specific benchmarks for making progress payments, including the amount for each such payment.

Do not make final payment to your contractor until all of the work is completed to your satisfaction.  Be sure to ask for a copy of the contractor’s insurance policy and call the insurance company to verify that it is current.

For substantial projects, have a qualified construction lawyer review your contract prior to signing it.  A small investment with a construction attorney can save thousands of dollars and immense frustration by avoiding traps for the unwary hidden in contract documents and by adding appropriate layers of protection into your contract that homeowners are not likely to add on their own.

Considerations for the Effective Use of Email in Connection with Construction Projects

By on June 7, 2016

Email is an indispensable tool for contractors that can streamline communication regarding the many facets of a construction project that aren’t strictly found in a project’s plans and specifications, or in the relevant contract documents.  When used well, email can be invaluable to document the course of a project.  When it’s disregarded or treated haphazardly, email can fail for its essential purpose – meaningful communication – or worse still it can be used to turn your own words against you.  The following are several considerations when using email to communicate regarding your construction project.

Who is my audience? 

This isn’t a trick question, but it is more nuanced than it might initially seem.  In the first, instance, the obvious audience for each email is its addressees.  Those addressees, however, may be only the first audience for your email.  If a dispute arises regarding your project, you should anticipate that the audience for your email might grow exponentially to include corporate principals, engineers, architects, attorneys, arbitrators, judges or juries.  As a result email correspondence regarding your project should be limited to professional matters, focused on the subject matter to be addressed and as clear as possible regarding the subject matter being addressed.  When developing your email practices, it’s important to remember that your audience could extend beyond the initial addressees.  This should help you to focus your message on the relevant considerations for your communication and help you avoid sending emails that you’ll later need to explain.

Why am I sending this email?          

If you can answer this question succinctly, you’re off to a good start in drafting an effective project email.  The “high-level” answer to this question generally should be reflected in the subject line of your email.  The details that follow in the email should be limited to addressing the matter(s) in the subject line.  Discussion of matters unrelated to the expressed subject should be avoided and saved for another email, letter or conversation.  Consider writing a new email, with a new subject line, when your message no longer addresses matters in the subject line, rather than continuing a chain of email that has gone off point.  If you follow this practice, you’ll help the recipient to quickly identify the reason for your email, prioritize your email among the many received on a given day and help both you and your recipient to refer back to the email, or chain of emails, later regarding the particular issue(s) addressed.  As a side benefit, you’ll appear focused, organized and professional in your communication regarding the project.

Conversely, if you can’t answer this question, whatever you intend to write is probably best left unsaid, or at least, unrecorded.  Among the reasons you should avoid sending a project email are anger, annoyance, personal reasons, sarcasm or humor.  Nobody like a humorless person, but email is tone-deaf or worse – susceptible to multiple tones.  Like a diamond, email is forever.  Once you’ve pressed “send,” it’s safe to assume that your email will be part of the project record forever.  And like a diamond, it’s for “better or worse.”

When is an email (or letter) absolutely necessary?

There are instances when it’s critical to communicate to another party with email or a letter.

Deviations from plans, specifications or the contract:  Each time you’re asked or told to do something beyond the scope of work or that differs from the plans, specifications or your contract, you should confirm what you’re asked or told to do in writing.  An email confirming your prior communication(s), your understanding of what’s been requested and your intended resolution of that matter is critical to documenting your project accurately and favorably.  An email or letter addressing these matters achieves at least three important objectives; it provides a contemporaneous record of the event, it provides the requesting party notice of your intentions and it provides the party receiving your correspondence the opportunity to respond, to object or to further clarify the information you’ve provided. 

Particularly with respect to change directives from an owner or general contractor, often it will not be enough to correspond with the opposing party regarding the change, and other steps will need to be taken.  It is important, however, to use the email as a means to establish the circumstances of the change request, your understanding of what has been requested and how and when you intend to address the request.  These matters can significantly affect the likelihood that you’ll be compensated for change requests later if a dispute regarding your performance arises.      

Disputes:  Because your project communication is a significant piece of the overall record of a project, it’s critical to fill in details regarding matters of dispute with your communications.  For the reasons previously noted, your email communications can be used to reflect and confirm oral communications between parties whose positions and recollections may differ and change over time.  An email confirming the contents of a recent discussion, particularly regarding matters in dispute, can prove invaluable to establishing the circumstances, your actions and your position if a dispute ripens into arbitration or litigation.  Your contemporaneous email correspondence can serve as a powerful and credible tool to establish your version of the events regarding any dispute.

Setting the Record Straight:  For the same reasons that the record of events created in your email can be used to support your version of events, it is vital to respond to inaccurate recitations of conversations or events from another party.  In the long hindsight of a project, inaccuracies that go unchallenged by simple omission become more difficult to discredit.  This is not to say that you must respond vigilantly to each and every minor inaccuracy.  Rather, it is important that you do not let another party’s version of events control the written narrative of the course of the project.  Long before any matter becomes contentious, you’re well served by addressing, in writing, significant inaccuracies in another party’s written narrative of events that are important to explain your actions or address historical inaccuracies.  Sometimes it will be important to make sure the record is accurate as to whether something was done on a Monday or Tuesday, but more often than not, it’s more important to know in what sequence a particular task was performed or whether a certain discussion took place before or after certain work was performed. 

It’s not essential that you resolve whose version of events are correct:  generally, you’ll be able to verify what happened by other means as well.  It is crucial, however, that your version of events exists in the written record so as to avoid the scenario where only your testimony is left to challenge the other party’s testimony and their unchallenged written version of events that you failed to address contemporaneously.  Under those circumstances, it is significantly more difficult to establish your version of the events or challenge the credibility of another party whose testimony is corroborated by a written record of the events.       

Developing consistent email practices can be a powerful, if underappreciated tool in the contractor’s toolbox.  In addition to developing clear and credible records of your projects, you’ll be prepared to address questions regarding the performance of your work in a consistent and compelling way.  Better still, you may limit or avoid disputes through consistent application of your good email practices.  And for those disputes that can’t be avoided, when you sit down with your construction attorney to discuss the matter and review your records of the project, it’s likely that you will have a better prepared project file than your opposing party.

Contractors: Do You Know Your Rights Under the New Hampshire Residential Construction Defect Dispute Resolution Statute?

By on April 12, 2016

New Hampshire has enacted a dispute resolution statute for residential construction defect claims made by homeowners that, among other things, provides contractors notice and opportunity to resolve alleged construction defects prior to a disgruntled owner instituting litigation against them.  Despite its obvious benefits to residential contractors, many contractors fail to preserve the right to rely on the statute in contracts with homeowners.

The residential construction dispute resolution law’s stated purpose is “to encourage the out-of-court resolution of disputes between homeowners and contractors relative to residential construction defects.”  NH RSA 359-G encourages the resolution of residential construction defect claims by mandating a procedure that homeowners must follow prior to instituting litigation against a contractor, provided that the contractor preserves its right to rely on the statute in its written contract with the owner.

Assuming the right to rely on RSA 359-G has been preserved, the homeowner must provide notice of any claim of an alleged defect to the contractor no later than sixty days prior to filing an action against the contractor in court.  The homeowner’s notice to the contractor must contain a description of the alleged defect(s) “in detail sufficient to explain the nature of the alleged construction defect and the result of the defect … [and] provide to the contractor any evidence in possession of the homeowner that depicts the nature and cause of the construction defect.”  In other words, the homeowner’s notice must contain more than a simple notification to the contractor that there is a problem.  In so doing, the statute requires homeowners to provide contractors with adequate notice of the actual issue(s) for which the homeowner claims a defect and not simply a notice that there are alleged defects in the work.

Provided that the contractor receives adequate notice from the homeowner, the contractor must, within 30 days, respond in writing to the homeowner disclosing any information the contractor has regarding the specific alleged defects and:

  1. Offer to settle the claim made by making repairs, paying money to the homeowner or both, without performing any inspection of the claim;
  2. Offer to inspect the claim; or
  3. Reject the claim.

Generally speaking, if a contractor offers to inspect the claim, the contractor will have 15 days to do so and then another 15 days to provide written notice to the homeowner of the contractor’s findings from the inspection.  In the written notice the contractor must:

  1. Make a written offer to fully or partially remedy the construction defect at no cost to the homeowner, and provide the anticipated schedule to complete repairs;
  2. Make a written offer to settle the claim by payment;
  3. Make a written offer to resolve the issue by payment and repair; or
  4. Issue a written statement that the contractor will not remedy the defect.

After the homeowner elects to accept or reject the offer made by the contractor, the matter may proceed with payment, repairs or to the courts if the contractor rejects the claim and the homeowner disagrees.

Importantly, if the homeowner accepts the contractor’s offer to remedy the alleged defects and the contractor does so, the homeowner is barred from later bringing suit against the contractor for issues related to the defect.  Similarly, provided that the contractor has preserved its right to assert 359-G, this dispute resolution mechanism provides the exclusive remedy for homeowners to utilize in the first instance.  Actions filed in court prior to exhausting the remedies in 359-G shall be stayed until such time as the homeowner has complied with the statute. 

RSA 359-G provides contractors and homeowners with a great tool to resolve disputes before they ripen into time-consuming and costly litigation.  The statute provides a common sense framework for the parties to a residential construction contract to address perceived deficiencies in the work in a prompt and orderly fashion without initial resort to a legal process that is ill-equipped to deal with residential construction defect issues efficiently.  Savvy contractors and homeowners do well by insisting that RSA 359-G be incorporated into their contracts. 

It is important to note that RSA 359-G contains many other meaningful timing, notice and additional requirements that are beyond the basic operation of the statute addressed here.  In order to gain a full understanding of the statute, how to preserve your rights under the statute, and how the statute operates in any particular situation, homeowners and contractors would be wise to consult with a New Hampshire construction attorney regarding the particulars of the situation.