AboutPeter M. Elliott Expertise First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only.
Experience Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit.
George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')
Question We own a construction business in Truckee, Ca. and usually build 2 spec. homes per year. Recently a couple fell in love with one of our homes and asked if we could build the same home on a lot of their choice. Each time they found some possible lots that they liked they would have my husband look at the lots first to make sure they would work with our plan. They found a lot and began working with our architect to make some changes to our stock plan. While the changes were being worked out they indicated that they also wanted to put the plans out to bid. My husband informed them that if they wanted his plan then he had to be the one to build the house. We did not want our plans out there with other contractors in our building area. Our architects also told them these were our plans at some point during all of this. The next thing we know they tell us that they don't know if they are even going to use our architects, ie using our plans with the changes. We have not heard anything for a while and because we are a small business we have pretty much booked up for the summer anyway so we never pursued it.
Today our plumber called us and said he had a set of plans for our house (except for the changes our architects had made for them). Our plumber was given the plans to bid by another contractor in our area. The plans had been copied and no longer had the name of the architect that we use but were the same plans.
We have notified our architects and are waiting to hear what they think we should do legally.
My husband did talk to one of the architects in their office and was told that if plans are changed at least 30% then they are not considered to be the same plans. But we would never have authorized the use of our plans to have changes made if we thought for one minute they would do this. We allowed these people access to our plans and allowed our architect to make their requested changes with the understanding we would be building the home.
Do we have a case against these people? We assume our architects will also want to take some action as their work was copied on a home computer and then sent out for bids but we want to know what our rights are as well.
Answer Hi Gina,
Firstly, I don't think that this is a question of construction law but a query about copyright, of which I know nothing. If you rate me, please do not rate me '0' for knowledge, because I admit ignorance of something outwith my professed area. One questioner did that and it's not good for one's reputation to get a zero. That said, here are a few general ideas which you may find useful.
In all dealings and letters, remember to be unemotional and objective. If you cannot be unemotional, then get a representative to write the letters and speak for you. It does not have to be a lawyer. Emotion has no value at law. Only facts count. Remember your aim – protection of your product and reputation – not revenge – not money (well maybe some). Incidentally, did the architect get paid for his input? Originally, it might have been speculative, but it they use his work, then they should pay for it.
You could write a polite letter to the couple, stating that you note that you have been informed that they are planning a construction using a modified version of your plans, that you have copyright of the plans and that, as you wish to protect your good name but do not want to be over restrictive, you are willing to approve their use of the plans subject to:-
1. A payment of a fee equivalent to 10% of the construction costs;
2. your prior approval of the any changes to ensure that they are compliant with standards and your original concept; and
3. your prior approval of the Contractor doing the work to ensure that the work is compatible with your own standard of work and that your reputation is not devalued.
They probably will not accept this offer, but if it goes to court, you will be shown to have made a reasonable offer in good faith. If they accept then you have achieved your aim, in that your have protected your copyright, ensured that the Works are built to your standard and that changes are acceptable to you.
If they refuse, then you are going to have to spend some money and only you can decide if the game is worth the candle. You could apply to the court for an injunction to stop them building using your plans, or using other contractor's, to protect your reputation, and the rarity value of your buildings, as you only build two per year. Probably you would have difficulty persuading a court that you should be the only people to build to your plans. I would have difficulty with the concept of 30% changes negating copyright, but it is not my area. If the layout, materials and external appearance were similar to your existing work, then it would be difficult to prove that the 30% made the work original. If their finished product could be mistaken for one of your house, I would suggest that you have a strong case for copyright infringement.
At the same time, or after the granting of the injunction, you could write to the tenderers stating the same as above, or copy your letter to the young couple to the tenderers. You could include a statement to the effect that you wish to remain on good terms with your competitors, but you must protect your copyright and so you will sue them also for infringement of copyright, just as they would sue you if you infringed their copyright. If you do not know all the tenderers, then put a notice in the local press regarding the injunction and the intention to sue the winning tenderer for infringement of copyright, or put a notice in anyway. I think that you will find that most tenderers will back off if you advise them of the situation.
You don't really want to spend a lot of time and money on legal solutions. Your main thing is building houses, not law. Only lawyers profit from the law, and it would be much better if you could solve the problem without the law. I presume that the couple has bought the land, so you could always drive past in three months and check out progress, and then put a mechanic's lien on the property.
I don't play fair. I play to win. Good luck and I hope that the above is useful. Rate me if you like it. If not, ask for further clarification.
