I’ve been down on being a lawyer lately, particularly after job woes and writing that post on billable hours. However, tonight I was pleased to be a lawyer. Briefly, a friend called me in distress because of a dispute over the completion of construction of her new family home. Her partner was overseas, and the builders had agreed to wait until he was back before having the final inspection of the house. However, almost as soon as her partner had left, the builders started to bully my friend to have a final inspection with very little notice and without her partner present.
Anyway, I went over to her house after dinner, and we read through the contract. It was clear that the “owner” had to be at the final inspection, and in the particulars of the contract, the “owner” was described as my friend and her partner. Thus to my mind, it was necessary for both to attend any final inspection according to the terms of the contract. Further, there was nothing in the contract which gave the builders the power to force my friend to attend a final inspection date to which she did not agree, particularly as the builders hadn’t done the things they were obliged to do under the contract as preliminaries to the final inspection. The builders were concerned about insurance, but my friend and her partner had already promised the builders in writing that they would cover any extra insurance needed over the period that my friend’s partner was away.
So we drafted a firm letter on my friend’s behalf telling the builders to go away. And I found a helpline at Consumer Affairs for my friend to call tomorrow to confirm what her rights are.
I don’t know why the builders would behave like that. My friend and her partner had been happy with the work right up until that point. I’ve heard the statistic that an unhappy customer will tell 8 – 10 other people about her experience. I tell you what, I certainly wouldn’t be using those builders if I had the moolah to be building a house.
As I have said in a very early post, I hate it when people use the law to bully others. It really worries me that some person who was less strong and assertive than my friend would have caved in. So, today I’m glad I’m a lawyer, because it meant that I could help someone else assert her rights. And if those builders call my friend again when I’m over there…BEWARE…
16 Comments
Sad to say, but this sounds like male tradies trying to take advantage of what they consider to be a lone woman’s ignorance. In which case a bit of lawyering is good for them
Sounds like? Is. Arseholes.
Just hope your friends aren’t going to have any nasty surprises when that inspection comes along. It’s sadly not surprising that so many people with an exclusive knowledge/skill set use that to the disadvantage of others. If they behaved ethically we wouldn’t have so many rules would we?
Speaking of an exclusive knowledge/skill set use that to the disadvantage of others, um, lawyers.
The Law: keys to the World. Innit?
We wouldn’t have so much angst, period. You’ve no doubt seen what happens to the smart kid in the school playground, no? Then watch when the smart kid grows up to be some sort of high earning professional or businessperson. We’re bloody lucky ‘screw you’ politics isn’t bigger than it is – although it’s still pretty big.
You’ve no doubt seen what happens to the smart kid in the school playground, no?
And felt it. Lucky for me I wasn’t the stereotypical ‘weedy nerd type’. And perhaps there’s something to Celtic machismo because some people thought my ‘courage’, insanity’.
Aye but ‘t was all in good fun.
But I’m sure there are persons, lodged in the apex of various skyscrapers, looking down and boiling inside at the High School crudes. Better n’ Columbine I guess.
My guess is cashflow. The need for which many people in business often find themselves being tough on others. Note that the cost of insurance would not be overly relevant to cashflow because it probably hasn’t fallen due anyway and it probably isn’t much. Also it is easy to tell people to take their time in finalising things when you’re on the job and being service oriented, only to find out later when you get home and have time for the books that there are issues with cash brewing.
I’m not in business now (or nearly not). However when I was I used to routinely have to do the ring around and lean on people for final payment. I rarely had serious cash problems but I stayed away from trouble by being tough (in a polite way) early and often. And if you do have cash problems you don’t admit them because it makes you look bad. The insurance issue could be just a cover story.
Legal Eagle – when you say “bully” what did this entail? Was it any more than an assertive request?
p.s. My lawyer customers were amoungst the worst offenders when it came to paying late.
This seems to be the Norm among many Contractors.
I have several friends who were ripped off by contractors.
One of my friends hired a contractor to fix up a rental property she purchased, and the Foreman got into an altercation with a group of teens who lived in the neighborhood, and ended up stabbing two of them to death.
Apparently, he was a different kind of “Contractor” altogether.
Whilst not knowing the full details of the situation it does seem to me that based on the facts given engaging a lawyer (even if a friend) who then sends a firm letter is a rather over the top response. I would regard it as a form of intimidation and it would sour the relationship pretty quickly.
Lawyers write too many blo0dy letter in my experience and should spend more time talking to people. However if the only tool you know is the hammer then I suppose every problem looks like a nail. I engaged a Lawyer once and they provided a great service. 12 months later I got a threatening letter from the same firm for not having paid one of their bills. The letter threated legal action. I was livid. I believed I had paid all my bills and I had even called them 12 months prior to confirm that we had paid everything in full. I called them, gave them and earful and said I refused to discuss the matter until they withdrew their stupid legal threat. After they did that they fax me the outstanding invoice. As it happens the mailing address on the invoice was completely wrong (not even the correct suburb) so it was clear that the original invoice never would have got to us. Why are lawyers so unable to use telephones?
In my experience contractors are usually great if you talk to them and do some active listening. Lawyers on the other hand.
Terje, My friend had been trying to talk and actively listen to these guys and they had threatened legal action against her. They had also been extremely unpleasant and rude. They had said that their primary concern was the question of insurance, and she said that she and her partner were happy to deal with that. She said that she had spoken to them for almost an hour and it was like banging your head against a brick wall – no room to negotiate.
I understand that there had been some difficulties at the beginning of this relationship which my friends had worked out by talking to them and all had been sorted out.
When I say “firm” letter, I do not mean “nasty”. Just a letter stating exactly what my friends’ contractual obligations are, because the builders seem to have forgotten that. In the event, my friend didn’t end up using the letter I drafted, but did use the contractual analysis in an e-mail to them. Apparently, they have now softened their position somewhat, but are still being very difficult.
Personally, I agree that you shouldn’t go in playing hardball. You should always see if you can talk to the person first and resolve things amicably. Face-to-face communication is even better than a phone call.
It is only when that doesn’t work, and there seems to be no room to negotiate, that you should then resort to writing letters and the like. I see a letter as a tool to soften the other side and force them to negotiate with you, rather than the first step on the way to filing a legal action. Legal action should be avoided at all costs.
If there is a cashflow issue, the builders should have mentioned that to my friends. The guy used to run his own business: he knows all about that kind of stuff and would have been sympathetic. He would have tried to work out a compromise.
In this case, the builders were the ones who went in playing hardball, and that’s a dangerous strategy. It can overpower a timid and uneducated person, but it could also backfire, and make the other person play hardball back.
I should say on a personal note that I always pay my bills on time! I have been involved in a number of insolvent trading cases, and know all about how important cash flow is to a small business.
Sounds like you’ve had some bad experiences with lawyers, Terje. I agree that some lawyers are overly aggressive a***holes. Personally, I am not like that, because you just exacerbate a dispute if you start being nasty. The whole aim should be to resolve the dispute, not blow it up! However, letters are necessary when talking has been tried and has not worked. And then, if a number of letters and conversations have been tried and failed, only then do you go to legal action.
Don’t tar all us lawyers with the same brush. Some of us are decent people who just want to help others resolve their disputes, but also for people to know what their rights are so that they can’t be bullied.
Fairlane, that’s a CRAZY contractor story. At least these guys are just bullies!
LE – I’d also recommend your friend have an assessment made by a building certifier that all work has been performed adequately. Hand that report over and say the inspection will be a review of it. Puts the builder on the back foot knowing another builder has already examined their work!
TerjeP – why do lawyers write letters? Because you need to prove things, like making a demand for payment. So a copy of a letter is the best proof, as opposed to a “trust me” phone attendance note. And I agree, hopping on the phone is far more useful to resolve issues and get things moving than any letter could achieve.
Pete, good point – part of the problem with these guys is that they never confirm anything in writing, and then when my friends said “you agreed to have a later final inspection with us “, they denied it, and my friends don’t have any proof of the agreement. That is another very good reason for putting things in writing.
My guess is that the final payment to the contractors would be contingent on that inspection which is why they would be seeking it sooner rather than later. That said I think that anyone with dealings on such a project may be well served by using a video phone or digital camera to record all such verbal agreements .
Iain, the final payment is indeed contingent upon the final inspection. The obligation to pay is within 14 days of the final inspection (if there is no problems raised at the inspection). But if the builders were concerned about cashflow, I suppose that my friends could agree to pay them immediately (as long as the inspection goes well).
In which case it was tit for tat and fair enough. Thanks for clarifying the story.
Sorry to sound like I’m against all Lawyers. I’m not really and the one time I actually employed a Lawyer the service was great. Too often though they get used as a malicious tool and I suppose that I expect better of them because they are generally bright and well educated people.
Perhaps I should declare my bias and point out that my father was a builder. I saw him go through many months of emotional hell when a couple sued him after he built them a lovely house and they didn’t want to pay (mostly because they were by then getting divorced and going broke in the process). He won the case and the other party had to pay full legal costs (which were still damn hard to collect) basically because they were full of crap and the judge knew it. However the process took a heavy personal toll on my Dad at the time. For months he had to live with the prospect of not getting paid for very signficant out of pocket materials costs, money paid to subcontractors as well as his labour having been unpaid and bank interest on the overdraft. On top of that he had to engage a lawyer at an hourly rate an order of magnitude above his own. He also had difficulty finding other work because he was so discouraged by the whole fiasco. I suppose I got a bit defensive when this discussion started running the line that contractors are a typically a bunch of unethical assh*les because in practice there are loads of unethical assh*le customers out there just looking for an excuse not to pay people their due. And lots of assh*le Lawyers keen to make a buck being a part of the process or simply too naive to look objectively at what is going on.
And whilst my Dad is a bright fellow he never got much chance to get beaten up at school because he was out learning a trade by the time he was twelve.
Anyways write the threatening letters as and when you need to, just don’t forget that the law is a blunt and heavy implement.
Terje, totally understand – contractors are like lawyers – you get some good ones and some bad ones. As I say, I have been involved in insolvent trading cases, and my heart bled when the creditors came in to say how not being paid had affected them.
In one case, the creditor was a farmer who had had to fly in from rural NSW. He’d clearly come in his best and only suit and was very nervous. He was still owed tens of thousands of dollars, and said sadly that he’d just decided to write it off, but it had been a terrible stress.
Of course, some of the company directors were blithely ignorant of this, and still protesting that they’d done the right thing.
So, that is why I am always particularly careful to pay my bills on time if it is a person running their own business.
That’s a terrible story about your Dad. I’ve heard of such things happening before upon relationship breakdowns, and innocent third parties such as your Dad get dragged in while the original parties take out their grudges on one another.
It’s a case where the law is inadequate – one needs to somehow take the money off the parties anyway and let them sort out who owed what later.
As I think I said in one of my very early posts, I am always cognisant of the fact that getting dragged into a legal action is horrible, and that it has a very stressful affect on the other party. Hence I avoid it unless absolutely necessary. Much better to try to resolve disputes in other ways first.