People often share their contractor horror stories with me and ask how they can take legal action. The problem is they often have very little documentation to back up their claims.
A good construction contract is critical, and I recommend you do your research before signing whatever a contractor puts in front of you. Even with a good contract, you need to stay engaged in the process. A journal can help, but it does not replace the need for official documentation, such as change orders and contract modifications.
It’s easy to become complacent. You pay the contractor and work begins. Things go well at first, but time moves quickly, and before you know it, you’re entering week six of a four-week project, it’s only half done and you’re trying to figure out what went wrong.
Assuming your contractor is reputable, one of the biggest conflicts is misunderstandings. I don’t know how many times I believe one thing and the contractor believes another. Then I struggle to decide the fair course of action, because if the contractor is right, I don’t want to create resentment or an adversarial relationship for the rest of the project, and I also don’t want to lose a good contractor.
Keeping a journal has really helped me. If things go badly, it can be useful in court or arbitration. Contractors, especially shady contractors, are good at complicating the issue or adding doubt in your mind. They blame delays and increased costs on the weather, additional work, inspectors and the client. You may be shocked to receive $10,000 in change orders at the final accounting. This is impossible to unravel six weeks down the road. It’s best to note things as they happen and share milestones and your understanding of them with the contractor.
Keep your journal simple. All you need is a notebook dedicated to the project. Start making notes as you go. The journal should be a quick reference guide. You can keep a more detailed journal if you’d like, but make sure the key points are highlighted so you can reference those quickly. In a worst-case scenario, an arbitrator may give substantial weight to your journal if there is no other evidence or documentation available. What it will definitely do is help you present your case with confidence.
Here are some key points I put in my journal:
Start date: Don’t rely on the date of the deposit check. Work often starts days or weeks later because of plans, permits and materials.
Major milestones: Note when major contract or construction milestones are achieved, such as demolition, framing and drywall.
Inspection dates: Note when inspectors show up. Don’t rely on the county to make good notes. You can look at the county’s website to find these dates, but it’s much quicker to have them in your journal. If the inspection fails, note why and the inspector’s name. I’ve had problems where the inspector told me one thing but then did not note it on the website, which led to later confusion.
Subcontractor work schedule: Your contract will probably be with a general contractor, and you may have little or no dealings with the subcontractors. General contractors often blame delays and costs on subcontractors, and they’re often right. If the framing is done but the electrician doesn’t show up until a week later, make sure you document it. Address it with the general contractor, and note the reasoning at the time.
Change orders: Any change orders must be in writing and signed by all parties before work begins. Put change orders in your journal. There have been times where I was just kicking around ideas and the contractor thought that was the go-ahead. Make a note in your journal when you have conversations with your contractor about changes, and always send an email about your understanding of those conversations later. Set reminders for yourself when decisions need to be made. Otherwise you could create a delay, which would be your fault.
Delays: I strongly recommend putting delay penalties in your contract. I don’t make them tight. If the contractor needs four weeks, I will probably give six weeks before the penalties kick in. My contract states that a contractor must provide me written notice of a delay and the reason for it within three days. Too often you’re at the end of a project that is a month overdue and the contractor cites all those excuses I mentioned above. Document the delays in writing, and at the very least, note them in your journal. You will forget them — or at least the details of them — within a week or so.
Contractor work schedule: If your contractor only shows up half the time and your project takes twice as long as scheduled, you need to document it. Without it, I guarantee contractors will blame the delays on everything but themselves. Also, if you’re promised a four-person crew but only one person shows ups, note that as well. If you can’t be on site every day, at least note progress, or lack thereof, in your journal.
Progress reports: I typically check on a project a couple of times per week, at most. I write down the status of the project at each of my visits, such as “framing is 50 percent complete.” I’ll note if I didn’t see much progress from my last visit. I take photos once a week, which I keep on my phone and note in my journal. If you are concerned about the lack of progress, compare it against the written schedule in the contract. If there is an issue, raise it immediately with the contractor in an email and mention the email in your journal.
Payment: I put a detailed payment schedule in my contract, but it almost always changes. Contractors often need funds right away. It’s a tough business for cash flow. Make sure you note in your journal exactly when you paid and what you paid for. Your journal will be a good reference to help you figure out a fair amount to pay. The last thing you want to do is pay too far ahead of progress.
Delivery of materials: If you are responsible for purchasing materials, make sure you note when they were delivered or if they were not delivered on time.
Conversations with contractor: If you have a detailed discussion with the contractor, make sure you note the date, location and details of the conversation in your journal. As a follow-up, send the contractor an email detailing your understanding of the conversation. Make sure the contractor’s understanding matches yours. Misunderstandings are a major source of aggravation and conflict. My journal has peacefully resolved a couple of misunderstandings between myself and the contractor. Contractors are busy, too. If you show them your notes, that might be enough to settle a dispute.
Many contractors spend all day on site, possibly multiple sites. Their documentation and accounting can often be lacking. If you rely on the contractor’s documentation, then be prepared to take what you get. A good journal will not guarantee you will have a good experience or a solid lawsuit if things go wrong, but it will help you better understand and manage the project with confidence.
Justin Pierce is a real estate investor and real estate agent who regularly writes about his experiences buying, renovating and selling houses in the Washington area.