After reading so much here on breaktime and seeing the perspective of GCs and others, I always (improperly) assumed that being infomed, I wouldn’t run into trouble with someone I hired and signed a contract with regarding payment for things…
A bit of background:
I hired a landscaper to improve particular parts of my yard– a wall here, a planting here, and some other odds and ends. He drew up a contract and it totaled a little over $14k. (For reference my budget was $15k)
I noticed a few things that we had dicsussed were not included in the contract– a few plantings were omitted, some regrading stuff was left off. He resived the contact to be around $18k to include these items. It was a little more than I wanted to spend, but I agreed to it, and signed the contract. We walked around the yard and discussed the scope in particular, and we confirmed that things not spelled out specifically were part of the job (e.g. pruning a particlur tree was not identiifed in detail, but was part of the scope on the contract.)
Along the way, the landscper would ask us if wanted things here or there, if if prefered the wall to look a certain way, etc.
Last night, 4 weeks into the job with one or two days left, the landscaper presents me with a new contract that has over 4K in upcharges. All of the work for these upcharges has been completed. At no point along the way did he say such and such will cost you more. An example– the contract specifed 8 tons of stone– he arrived with 10 tons instead that he got from a different place but “it cost the same amount.” He did not say “Would you like the extra two tons.” He said it cost the same. Although the extra stone is nice, I would not have agreed to buy additional stone, given the fact I was above my budget to begin with. That was an additional $1200.
The contract says that “Changes involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate.” We never had any written change orders.
I don’t want to take advantge of this guy, but I’m not made of money. Pehaps I was niave in thinking that his suggestions along the way were not increases in the scope of the project, but I was operating under the impression that an upcharge would be at a minimum discused as costing more. For exmple, we asked part way through if he could add a small weeping maple. He said he would find one for us, and I said let me know how much that costs. He planted it before talking to me about the price, but I’m going to pay that becuase I asked for that.
Anyway, long story short, I’m seeking input from all of you to help me figure out what to do. After he gave me the new contract last night, I told him that the large increase took me by surprise and said I needed time to look at it and wanted to talk to him this moring about it. He agreed to come by the house early to discuss this– he did not show up to talk about it.
Please help. You guys always seem to come up with good suggestions.
Replies
jmac ,
As the job was in progress and you said you were in agreement to revise or refine some details as he got to them , unless a written change order was executed and the recommendations in this case were the landscapers , imo no talk of price increases were identified at the time .
As you said when you added a tree , you will pay , when he say's hey I got extra rock , you did not approve of increased price for the rock , maybe he could take some back ?
If , you said great $14,000 to do the back yard lets say , then you said hey I'd like you to do the front yard as well and for conversation sake lets just say it was about the same scope as the agreed upon , then it would be reasonable to assume that you would pay a like fee for the additional work .
However even then a change order ( should have been used ) imo , mainly to protect the landscaper and to ensure that you approved the scope of the add on .
best of luck dusty
Thanks notDusty.
Offering him the extra rock back makes sense. From his perspective, I'm not sure he'd want to spend the time to move them out. The extras were a few big'uns.
Also in terms of the scope it was not a back yard vs. front yard issue. For example one of the parts was the "front bed" and described tilling and replanting it. One of the "changes" was "front bed" and includes labor and mulch upcharges. I think it relates to one of suggestions for the front bed, but am unsure exactly what it is until he talks to me more about it.
We don't do work over $50 that hasn't been approved with a written change order and signed by the client. I firmly believe your situation is one of the biggest problems in our industry as far as public trust goes. In my opinion it is our (contractors) responsibility to communicate the amount of money changes will cost as early as possible and if at all possible before the change work begins.
I would not pay the money the guy wants for the extras. He didn't communicate it, he didn't follow his own contract and I believe you don't owe him for it. That is my opinion, I am sure there will be others. DanT
Thanks for your response.
It really caught us off-guard. I've hired numerous contractors and others in the past, and have never had this happen to me. In the past, every time I have made a change that was an upcharge it was always at a minumum discussed. I have always paid every person I have hired in full and on time.
BTW Do you know if I say no to some of the upcharges, can he rip stuff out he has finished (e.g. some of the rock wall) or make my life miserable in some way (lawsuit, line, etc.)?
1. I think this landscaper is trying to recover loses from somewhere. I don't know if it is your job or another, but, if true, this sounds fishy. How can one justify presenting a revised contract in the 11th hour without previous discussion of revision? How can an extra 2 tons of stone cost him the same but you an additional $1200 when you never requested the increase? That is outragous and unheard of...well maybe not. I would be honor what I agreed to in the original contract as well as the addition of the weeping maple.
2. the guy can do whatever he wants but removing the plantings would be illegal...he doesn't own them. his only legal recourse is a lawsuit but he stands no chance since he ignored his own contract.
stand firm...you do not need to pay for his mistakes.
You might be right about recovering losses. His motive is of course a secondary issue. But on a couple of occasions he has mentioned how he is having costs/cash flow issues (i.e. the dumpster cost him more than he planned, how his workershave been messing things up (to explain why it is taking so long, etc.)
In addition a number of things he has done don't look "finished", but I'm happy to eat that to get this over with. I have tried to be very accomodating, but this has not been an enjoyable process:)
I just want to do what is right. It sounds like although I do not need to, it would be fair for met to pay for the specific plantings that were added. I think I'm going to refuse to pay for the additional stone and labor. Lets see what happens.
Again thanks to everyone for all of your responses.
Stand your ground, document all conversations ,and be sure to have copies of both contracts! I run a small landscape co. and have seen this happen more than I would like. He wrote and BROKE his own contract.His problem, but he might try to make it yours. Don,t budge, you are being reasonable. Talk to an attorney. I hate dealing with the law professionals, but cotractors like this guy neccessitate it! Good Luck
I wrote up a long reply on this one but the Forum lost it. First time ever.
Anyway, I would not pay the overage at all. $4K on an $18K contract is too much, especially after he had two tries to write the thing. His business skills are obviously sorely lacking.
I would also tell him that any future "extras" will go unpaid too. If he can't write change orders he will consistently lose money as a contractor and will be working for someone else next season.
You should make sure that everything you do want is written into the contract. Verbal assurance that they will deliver stuff that isn't written is asking for trouble.
If it's as you say it is, I wouldn't pay.
When we got to court, the written contract will govern.
blue
Thanks.
Hope we can work this out without going to Court, but I am comfortable based on facts of the situation. If he is reasonable about things I may comrpomise on some of the charges to avoid the hassle of lengthening the process and spending more of my time dealing with this. I'd rather spend time playing with my kids than arguing about these things.
I'll share the outcome of my talk with him.
Ditto Blue. If it is as you presented, he has no basis for the additional charges. Contract says it must be in writing, make him show you the signature.
"When asked if you can do something, tell'em "Why certainly I can", then get busy and find a way to do it." T. Roosevelt
What's to prevent him from placing a lien on your property for $4,000 or whatever amount? Then all he has to do is sell that lien to someone for $1,000 and you will be harassed to death by this new guy who will make you a deal. "I'll quit bugging you if you'll settle the lien for $2,500". He makes a quick $1,500 for a few nasty phone calls. There's a whole subculture that buys mechanics liens and then pesters the sh** out of the unfortunate homeowners until they settle out of desperation. (Of course in some cases they're jerks and need to be harrassed.) I also don't think you should pay because your contract plainly says that change orders are in writing only. He's just trying to push hard to see how much extra he can get out of you.Just out of curiosity, did you check any references before hiring him? Look him up on Angie's list or run a BB check?
depends where U are.
I can't lien someone until after we go thru the magistrates.
and I win.
and they don't pay.
and we head to courth a second time.
and all that costs me money.
I can't just call the cops and say "Lien That Man!"
Jeff Buck Construction
Artistry In Carpentry
Pittsburgh Pa
I was gonna say, that wouldn't work here. I can file a lien if I want to, but I have 8 months in which to file suit and perfect it. If I do in fact win a judgement there's no need to sell the lien to a debt collector, I would petition the court to order sale of the property by the sheriff to satisfy my debt and any other that's above mine.
Sure as hell wouldn't be worth it for $4000... unfortunately.
I had worked with him before when he was part of a larger firm. He recently had started out on his own. He had done a great job before, but I think now that the bottom line is his, he is acting differently.I really appreciate everyone's responses here. You are giving me the confidence to stand up to him on this. My wife has been saying the same things as you guys-- she'll appreciate you all backing her up.
If things are as you say they are, and you freely pay him without a fuss,....please
call ME when you get ready for a beautiful new deck or garage or bathroom or really
anything that I could charge ya for:) :)
This post explains much - a good landscaper but a poor business man. What I suspect he did is to price everything out and give you the scope and cost. Since he was focused on landscaping - he never kept track of his costs. So now close to the end of the job - he checks his costs to date and finds that he is taking a significant loss and is trying to recover with the change order.
With respect to my thoughts as what to do - If you have been satisfied with his work - I would work with him to see if you can wind up with a comprimise. I am personnaly a believer that in a situation where the contractor could take a significant loss, I will only pay him so he recivers his cost - Get him to break down everything as to his direct cost - If that is over the contract price - subtract out his labor - if that cost is still over the contract price - see if you can come to a compromise.
Just my 2 cents
jdarylh1 ,
I 'll tell you what if one of those ambulance chaser types that would buy the lien , would buy this lien without realizing it will not have a chance in a court of law ,I got a bridge I'll sell him real cheap ,lol .
dusty
Well, the landscaper finally showed up to discuss this with me. Not on Friday like we had planned-- he left the job early in the day, but on Saturday when he was supposed to be "finishing up".
Long story short, I stuck to my guns (based on the advice you all gave me) and based on a conversation I had with a lawyer friend. The discussion lasted what felt like a really long time. Some highlights that I remember clearly in him trying to convince me to pay the upcharges (some language in quotes here are probably paraphrases as the conversation was going pretty fast):
Him: "I don't take any shortcuts, I do it the right way.. {Detail of how he does it the right way}."
Me: "That's why I hired you in the first place. Why does this increase my cost?"
Him: Essentially, "Because I can't find good help. The guys I hired did it wrong."
Me: Something like "That shouldn't be my responsibility"
***
Him: "I don't work for free!"
Me: "Yes I know. That's why I'm paying you over $18k as specified in our contract"
***
{After me pointing out that he is not properly licensed in our area [BIG surprise to me-- I looked him up personally a little late in the process (Never again)]}
Him: "How am I supposed to know this."
Me: "You're the landscaper... I bet there a books on it, packets put out by the county, webpages dedicated to it..."
Him: "You don't know how hard this it is to do this...{Explains how hard he works, how tired he is, how hard it is to manage other people, to deal with clients, phone ringing, etc.}"
Me: "I have a lot of respect for how hard it is, {Explain how I have similar issues at my job}"
Him: "But you are not physically tired at the end of your day!"
Me: {Something about the relevance of this}
****
So to close the deal, I paid him in full for the contracted job (even though it was not complete-- a few days of work left in my estimation), and made him sign a release that he had no claims against me. I did not pay him for the weeping maples (which he suggested he take with him- to my refusal), but instead told him I would clean up the job site, and take care of the trash (which took me and a neighbor together over 10 hours to bag, stack and haul away and it is not done yet). [I still have to get some bait to take care of the rats-- yes rats!]
My wife and kids and I spent all of Sunday picking up and doing the detail work (which was actually fun.) I learned my 1 year old is a pretty good sweeper, and my 4 year old can climb up and down a 6 foot pile of mulch for hours. A few more weekends, and our yard will be in ship shape. I also learned that I've got to be a bit more careful in the future when selecting a professional to help me at my house.
THANK YOU EVERYONE FOR YOUR HELP AND INTEREST. My family and I thank you for helping us through this difficult situation-- we probably wouldn't have resolved it favorably without you.
and made him sign a release that he had no claims against me.
Brilliant move. And good on you for sticking to the contract.
"When asked if you can do something, tell'em "Why certainly I can", then get busy and find a way to do it." T. Roosevelt
Good job. You handled it well and in a fair way. As was mentioned, he's apparently a good landscaper but has problems with the business end. Hope he can get a handle on it.
You've been listening to too many bar lawyers Jdarylh1!
Your lien scenario wouldn't fly here in MI. I've never heard anything like that happening anywhere. In fact, there are very strict laws against harassment by creditors.
Liens dissapear in Michigan unless you go to court to perfect it. Then, you have to collect it by going through foreclosure. I highly doubt any michigan judge would allow a homeowner to lose his house on a violation of Michigan law and a breach of contract by a contractor.
Filing improper liens is also against the law in Michigan.
Look at the written contract for guidance...that's why the contractor and homeowner sign them.
blue
jdarylh
What's to prevent him from placing a lien on your property for $4,000 or whatever amount?
Indeed, what is their that prevents that from happening? I see Jeff Buck's post right after yours says that he cant until after he does.........
I'm currantly advising/helping a guy that got screwed by a GC and the HO is worried that the GC will just slap a lien on his house, is that posible? And if it is what would stop me from just going down to the court house and slaping a lien on my neighbors house?
I need to start a thread of my own on this subject and outline the situation that I'm dealing with so as not to hijack someone elses thread.
Doug
There was a situation some years ago that was in the national news I believe, where a fringe group slapped liens on a number of high dollar properties then got loans against those liens. The details are a little fuzzy in my mind but I think the reason it hit the news was that they began defaulting and the investigations started. Jeff's post sounds quite correct and I hope that's the case everywhere - that you have to get a court judgement and the other party won't pay before you can "lien" on him. But as far as I can remember, the fringe group didn't have court judgements and were able to file liens anyway.Sometimes liens do hang on for years before being settled - that's part of the title search when you buy a house, to uncover any liens against the property. Cases like that are ripe for the lien collectors to buy for cents on the dollar.Anyway, as you said, let's not hijack this thread.
If it's as you say , I wouldn't pay.
You and Johnnie Cochran.....................man, what a team.
<G>Live the Good Life in the Permian Basin.
If it requires that you sign a change order to be qualified for additional payment and if you didn't sign, and he never even said anything about an additional price....
why would you owe?
If you are willing to pay for the small weeping maple, be sure you get a value for it before you tell him "I'll pay for the small weeping maple but no the extra stone". He may very well come back with "the little tree costs $4000 and all that extra work I just ate". It sounds like you have a value for the tree since you have the rock increase but...
Other than that you only owe him the value of the original signed contract.
Bill
Funny, but true I'm afraid. I'll make sure I have the final pricing in a witten change order before I say yes.You guys are the best. He has agreed to meet with me tomorrow late in the day. By that point the job should be done (I hope) so I don't have to deal with an angry landscaper in my yard for too much time.
"The contract says that "Changes involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate." We never had any written change orders."
That says it all right there
Welcome to the
Taunton University of Knowledge FHB Campus at Breaktime.
where ...
Excellence is its own reward!
Was the origional contract a " quote or a estimate " there is a difference between the two
If you pay him for the tree you are admitting that you will pay for undocumented extras
A lawyer would notice that fast
If he wrote the contract and dident follow his own contract hes screwed for the extras if you refuse to pay as they are only extras in his mind
Whatever you do, don't pay him another dime until the job is completed to the letter of the contract and he is off your property for good. Watch him like a hawk, take copious pictures and document everything.
When the job is completed pay him the exact contract amount and get from him (at the time of payment) a written acknowledgement that he received all amounts due. Depending on your state laws, you may want a lien release statement also.
There is nothing like withholding money to get people to live to their obligations.
DG/Builder
The contract says that "Changes involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate." We never had any written change orders.
This clause is where I would start. It is designed to protect both parties.
Last night, 4 weeks into the job with one or two days left, the landscaper presents me with a new contract that has over 4K in upcharges. All of the work for these upcharges has been completed.
The hard nose approach would be to refer to the change order clause. executed only upon written orders
If you can not discuss the matter with the change order clause in effect and considered, what is the purpose of the change order statement?
For exmple, we asked part way through if he could add a small weeping maple. He said he would find one for us, and I said let me know how much that costs. He planted it before talking to me about the price, but I'm going to pay that becuase I asked for that.
You asked for it, but extra cost should have been discussed and a change order written, according to HIS contractural statements. I usually do not take a hard nose approach. I try to fully understand what happened and why, but it seems the big WHY here is adding to the scope of project without communication. You have plenty of grounds for a good discussion.
Of couse, in all of these situations, I try to practise a good proverb: "One mans story sounds good until you hear the other side."
EDIT: Well, I read his side and it sounds ridiculious. Sorry you guys had to complete the job. I think I would have reduced the contract amount by what I figured it would cost me to complete the work plus 15 - 20%. If he wants the balance he would need to finish.
Edited 5/15/2006 1:45 pm ET by txlandlord