When a building project starts going wrong, you may want the builder to finish while also keeping open the possibility of bringing in someone else. That is understandable, but your response to a breach can affect the rights available to you later.
Protecting your position ordinarily starts with identifying the problem, recording it and understanding what the contract requires before taking decisive action.
Establish and Record the Breach
The first step is to identify, and then explain, precisely what the builder has failed to do. General statements or accusations, such as that “the work” is "unacceptable" are far less useful than identifying the defective part of the works specifically, and precisely what you say is wrong with them.
Keep the contract, drawings, quotations, payment records and correspondence together. Record oral discussions in a follow-up email to the builder or, if that will just conflict, email yourself or a family member so that your account is time/date stamped. Dated photographs and an independent inspection may be particularly valuable if they can be arranged before further work conceals the problem.
Check who is responsible. An issue may concern the builder's workmanship, an architect's design or an instruction you gave. That distinction affects what you can properly require the builder to do.
Use the Correct Notices
The contract may require notices to be sent before you can exercise particular rights. It might specify a recipient, an address, a method of delivery or a period in which the builder can remedy a default. If you have a contract administrator, they can help you identify what is required. If you don’t, then its your responsibility to make sure you comply with any requirements of the contract.
A detailed complaint is useful evidence, but it may not be a valid contractual notice. Equally, calling a document a "formal notice" will not make it effective if its contents or delivery method do not comply. Keep evidence of when and how notices were sent in case the builder later says they were never received.
Understand the Choice About Continuing
Some serious breaches give you a choice between terminating future performance and treating the contract as continuing. Choosing to continue, despite a breach, is called "affirmation".
That choice can be communicated through conduct as well as words. If, knowing the relevant facts and your right to terminate, you act unequivocally as though the contract will continue, you may lose the right to terminate for that breach (but you may still have a compensation claim).
The distinction matters where, for example, you discover serious defects but then instruct substantial further work under the existing contract. What that conduct means depends on the whole exchange and the circumstances but it is important to appreciate that your words and conduct can affect your legal rights even if your builder is in breach.
You will ordinarily have some time to investigate and decide what to do. Asking the builder to explain or reconsider its position does not necessarily amount to affirmation. However, you cannot assume that you can leave the decision open indefinitely. The urgency of the works, the conduct of both parties and what happens during the intervening period will matter. A later breach or a continuing refusal to perform may raise a fresh issue, but should not be treated as an automatic revival of a right already lost.
Does Reserving My Rights Help?
Clear wording that you are investigating the breach and reserving your rights can help explain your position. It should be consistent with what you actually do.
A reservation of rights is not a guarantee that every option remains available, however long you wait. It also does not give you a general right to stop paying, deny access, or suspend your own obligations. Those steps need a separate contractual or legal basis.
Agree the Next Steps Carefully
If the builder offers remedial work, record what will be done, who will pay and the proposed timetable. Be clear whether or not the agreement settles any claims or simply provides a way to attempt a remedy. Avoid signing a final settlement or release without understanding its effect.
If you’re involved in a project that is going wrong, contact Hamshaw for advice about how you can protect your rights (such as in relation to defective or delayed work) whilst keeping the project moving forward.