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 -------------------------
Followup To
Question -
My husband and I are in the process of building a home in a township in southeastern Michigan. When we purchased the lot, there was never standing water on the property. With the record setting rainfall that we have had in our area there is enough standing water on the property to require the builder to continually pump it off just to keep it out of our walkout basement. It is not possible for them to adjust the grade as the rear of the property is the low point and we are surrounded by a hill on three sides.
The builder has obtained an engineering consult and will have to set up some kind of permanent drainage system. This will likely be a holding tank and pump system that will have to be installed at the rear of our property, at the builders expense. Although the builder is addressing the issue, my husband and I are having serious second thoughts about continuing with this project given the unforseen developments. We never would have agreed to purchase this lot had we known up front about the drainage issues or what would be needed to correct it. Is it even possible to get out of a building agreement at this point or are we stuck?
Thank you, Karen L.
Answer -
Hi Karen,
You can get of any contract, but at what cost? I presume that you want to cancel the Contract and leave without paying the Contractor for his work. Not a realistic, or even honourable, solution. Construction is an inexact science at the best of times and the unexpected always happens.
I do not understand part of the basis for your question. Is the problem due to rainwater or ground water? Is it a short term problem due to ponding just after a heavy rainstorm, or is the problem due to a rising ground water level due to a long term change in the environment? During construction, it is normal enough to have pumps removing rainwater after showers, or even groundwater. Once the construction is finished, the pumps go away.
If the problem is short term due to ponding of rainwater, then firstly, study the rainfall records and see if the heavy rain is likely to occur every year, every five years, every 50 years. Then take a view of the risk. If the site is open to the front, can the drainage be organised for rainwater to escape to the front of the site. Alternatively, I would try to make a virtue of necessity. Can the rainwater be used to irrigate the garden, or recycled for wasting and toilets within the house? Why not consider a softer solution to removing the water, through a large soakaway, which is likely to be cheaper and require less maintenance.
If the problem is due to rising groundwater, then the basement could be made water proof, or at least water resistant, in several ways depending on the method of construction. The Contractor should have been aware of any groundwater problem before starting work and made the necessary provision to mitigate the problem.
If the Contractor is resolving the problem without difficulty, I would not worry too much and I would sleep easy at night. You have the chance to have an attractive new home. If you are really stressed by the hiccups, then you could try to sell it on, but that might increase the stress by several orders of magnitude. Alternatively, ask the Contractor how much it would cost to cancel your Contract, but sit down before you ask him.
I hope that the above has helped, but feel free to ask a supplementary question if I have misunderstood anything.
It's not that we are trying to get out of paying for the work, but this is the contractors subdivision. The lot originally belonged to him and he could certainly finish and sell the house to someone else. We feel that the contractor should have known that this was a possibility based on the elevations on this site. It is a rainfall issue, not a groundwater one, and gravity drainage is not an option because the low spot on the property is lower than the storm drains. We are afraid that a holding tank and pump will
1) make a large amount of space in our yard unusable for anything else, such as a built-in pool. The tank must have a capacity of 1000 gallons.
2) be expensive to operate
3) be subject to malfunction, power failure, etc. that would then result in flooding into the basement by way of the walkout doorwall
4) negatively affect the resale value of the home that we only intended to occupy for about 5 years.
This is much more than storm water "ponding." This is our entire backyard under water and flowing into the basement from the outside unless they continually pump it off. We also did not even intend to have a walkout basement, until the builder suggested that we could have one on this lot and we are past the point where that can be changed. This township does not have an engineer and a builder only has to meet the setbacks to be able to build on a site. We agree that the builder should have been able to anticipate this problem when the site was lasered and surveyed. We feel as though he sold us this lot under false pretenses and simply got caught by the extreme volume of rainfall this spring. It has been a record setting one at nearly 10 inches of rain in a month. A far as looking at history to predict? Could anyone predict what will happen with any certainty given the changing weather patterns and increased weather severity that all regions of the country are experiencing. I certainly would not be comfortable making a decision about this based on a prediction. I realize that it is very hard to make someone understand the scope of this problem using this type of forum and we will most likely have to seek a consultation with a local attorney to see where we stand. I just thought this might be a place to start and I thank you for your help.
Answer Hi Karen,
I hope that I have helped to define your worries so that you can discuss your options with a legal representative at minimum cost.
Why not make the holding tank into a swimming pool, instead of burying it in the ground?
Have you spoken to the contractor about withdrawing from your contract and investigating the termination costs? There may be a win win solution at minimum costs, especially if the contractor can sell the plot with no delay. You may have to accept some expenses, but then life is a learning experience and experience is expensive!
Mostly do not let the problems affect your health or stress levels, because life is more important than money.
