Thursday, January 12, 2017


At the end of the year I think about the disputes I’ve handled, and how they might have been prevented.  I also consider better practices for contractors and how they can improve their businesses.  These are my top ten resolutions for 2017.

1.  Insert a Right to Repair Clause in Your Contracts

If you are going to run a contracting business, you are eventually going to run across owners who refuse to pay for work because it is (allegedly) defective.  Or, the client may pay another contractor to “fix” your work and try to collect that money from you.  One way to discourage this practice is by inserting a “right to repair” clause in your contract.  Before an owner can go hire someone else to “repair” your work, they are required under the contract to give you the opportunity to review any supposedly defective work and repair it.  This greatly reduces your exposure to defect claims.

2.  Include a Right to Stop the Work for Nonpayment
A contractor does not automatically have the right to stop working if a customer fails to pay.  There are always going to be clients who try to come up with excuses for not paying.  If payment isn’t made within a certain amount of time, you should include wording in your contract that allows you to stop work after written notice to the owner.

3.  Consider a “Termination for Convenience” clause

Sometimes the project just isn’t a good fit.  Perhaps a better opportunity comes along.  For whatever reason, a failsafe for getting out of a contract can be a good idea.  Make sure it includes the right to get paid for all work done to date, including reasonable profit and overhead.

4.  Have Agreements with Subcontractors

You may have been working with your subcontractors for years, but you need to have a written agreement with them.  This should include terms of payment, clearly delineated scopes of work and indemnification clauses.  An indemnification clause states that if you are liable for your sub’s work, the sub must pay for your legal fees and pay you back for any damages assessed.  You should also be able to back-charge a sub for incomplete or defective construction work.

5.  Pay Employees as Employees and not as Independent Contractors
Massachusetts is very clear.  If someone is working for you and doing the same work that you do, they are your employees.  If you control the means and methods of their work, they are your employees.  If you pay employees as independent contractors, you could be liable for triple damages, attorney’s fees, interest and costs.  It is not worth it.

6.  Know When NOT to Take a Client
We’ve all experienced those red flags when meeting with potential clients.  Listen to them!  Life is too short to be spending time with someone you don’t like who micromanages your work.  If your gut is telling you to reject a client, move on.

7.  Respect Your Clients’ Home
For you, the builder, this is just one of many projects.  For the homeowner, this may be the dream of a lifetime.  You need to be sensitive to the fact that homeowners are emotional about their projects.  Husbands and wives may not be on the same page.  Your job is to educate them about the process and be aware that the project means much, much more to them.

8.  Make Sure You Have The Right To Recoup Attorney’s Fees If You Have To Go After Clients For Nonpayment
As a contractor, if you don’t have the right to attorney’s fees in your contract, you are not entitled to recover them.  Frequently it is not worth it to pursue payment from a client if you have to pay an attorney as well.

9.  Draft Separate Design and New Construction Contracts
Renovation contracts are subject to the Home Improvement Contractor Statute which can entitle a consumer to double or triple damages, attorney’s fees, interest and costs if the law is violated.  Design and new construction contracts do not fall under this law.  For that reason alone, you need separate contracts.  Clients also ascribe value to what they pay for.  Design provides value, and builders need to get paid for it.

10.  Document, Document, Document
All change orders should be in writing, signed by the parties and reflect any change in the contract price and date of substantial completion.  Take pictures of your work in progress.  Keep good records of signoffs on inspections and customer approvals.  I’m not suggesting that every job should be treated as though it’s going to end in a dispute, but unfortunately, in this day and age, you do need to protect yourself, be able to back up decisions that have been made and the quality of your work.
If you follow these resolutions, I guarantee you that you will end 2017 on a much better note than when it started.

*Email me your contracts and I will review them for free!  I will then quote you a price for updating or drafting your contracts.

Friday, August 14, 2015

The Importance of a Good Beginning and End to a Construction Project

“Light At The End Of The Tunnel” by Sura Nualpradid from
“Light At The End Of The Tunnel” by Sura Nualpradid from

My husband, who is a very smart guy, made a very wise observation last week. He said, "It seems to me that most of the problems with construction projects occur when a job is first starting, or at the end."

I thought about it and realized that he is absolutely right. A project can go along smoothly, but then problems occur at the end that leave everyone with a negative impression of the experience.

I think about my most recent client, who spent over one million dollars renovating his house. He and the contractor are in a dispute about the last $6000.00. I have not made a mistake with the zeros.
So, for contractors and construction companies, I offer the following advice:

1. Tell your clients at the beginning if you are finishing up another job. Let them know that you will be starting at a slower pace in order to do justice to the previous project. Promise them that you will afford them the same courtesy.

2. Reduce anxiety by letting your clients know how often you will be on site. If it's two days per week, show up two days/week.

3. At the end of a job, tell the owner that you will be tapering off in order to start the next job, but that you will complete the punch list by a certain date. Again reduce anxiety by committing to a certain amount of time on site and following through on that commitment. In addition, if the completion date needs to be extended, fess up and admit it rather than cutting corners and rushing through the finishing touches.

4. Make the client happy! It totally amazes me how short-sighted some builders can be. Your clients are your best source of referrals. You want them to be thrilled with the work you've done. Buy them a bottle of champagne when the project is finished. That's the last thing they will remember about you, and it will more than pay for itself in new work.

Wednesday, July 29, 2015

Explaining Allowances in Contracts

To contractors, allowances in contracts may be self-explanatory, but owners often find them confusing.  A typical section on allowances may look like this:

             Cabinets                                    $10,000
             Kitchen appliances                    $25,000
             Bathroom fixtures                     $20,000

What contracts often don’t explain is, what happens when the full value isn’t used? If I only spend $8,000 on the cabinets, do I then get to allocate the $2000.00 to another category?  If not, why not?

Who is responsible for buying the materials?  Will the checks be made out to the General Contractor?

Is the General Contractor charging a mark-up on materials?  Will this include change order items?
Contractors often find that owners will claim that they can find materials and supplies more cheaply on the internet.  It is the contractors’ job to explain to the owner that he has a relationship with his suppliers that ensures timely delivery and good quality.

How will overages be charged? Will the contractor issue a written change order, or will the owner pay for the materials directly?

What will be the level of quality for materials?  I once handled a dispute over the definition of “builders-grade” toilets.  It is better to include brands and specific choices in the scope of work to prevent misunderstandings.

Include a disclaimer in your contract for owner-supplied materials.  Require the option to provide a substitution if an item is not available for an extended period.

Make it clear that manufacturers’ warranties will be passed on to the owners.  Delineate responsibility for registering products or obtaining rebates.

Don’t assume that an owner will know how allowances work just because they are included in your contract.  Provide the additional information listed above in order to avoid disputes!

Tuesday, June 30, 2015


Design/Build contractors are really running two businesses at once: there is the design portion of a project, and then there is the actual construction.  Design/Build contractors should therefore have two different contracts for these phases of the job for the following reasons:
  1. Design does not fall under the Massachusetts Home Improvement Contractor Statute, M.G.L. c.142A which governs home renovation projects in Massachusetts. There are strict requirements for which clauses have to be included in these contracts and any violation is a per se, automatic violation of the Consumer Protection Statute, M.G.L. c.93A, which can give consumers up to double or triple damages, attorney’s fees, interest and costs.  For that reason, contractors do not want the design portion of these projects to be subject to these laws.
  2. The contractor must make clear to the homeowner that there is a separate fee for the design, and that the fee is nonrefundable. I have seen too many cases where a homeowner decides to proceed with another contractor and then asks for all of his money back. 
  3. It must be made clear to the homeowner that the design is for the contractor’s use only. One of the advantages of design/build is that the design does not require the degree of specificity that would allow for it to be used by an outside contractor.  The contractor can make modifications as the project progresses.  This provides the homeowner with savings by bundling the design and build services.  However, if the design/build process is not made clear, there is a higher risk that the homeowner will attempt to take the design/build contractor’s design to other contractors.  
  4. The contractor should decide who owns the design once it is paid for. If the homeowner is given the design then the homeowner should have to sign an indemnification clause that would protect, defend and pay back the contractor if he is sued for the use of the design by someone else.
  5. The contractor may decide to include mediation and/or arbitration clauses in the design contract that would result in a settlement of any dispute regarding the design phase. This would be binding, and would not fall under the state Home Improvement Contractor Arbitration Program.
  6. The contractor may also want to include a clause that allows him to end the work at the design phase “for convenience” if the relationship is not going well.
It is the contractor’s job to educate the consumer about the advantages unique qualities of design/build.  The customer should know who is doing the design and the type of qualifications being offered.  They should understand that it is the intent of the parties to engage in every phase of the construction together. 
Most consumers are not familiar with design/build.  It is important to have comprehensive contracts to protect you if unexpected issues occur.

Tuesday, June 23, 2015

Why Contractors Should Strive for Excellence

I have many clients who tell me that they've never been sued. If a problem develops, they work with their clients and try to resolve it. Working as a contractor who does new construction or remodeling has never been harder. Clients turn to the internet and believe they know how to do it faster, better and less expensively. They are savvy consumers who monitor time spent on the job and costs of materials.  Sometimes they work at home and keep close tabs on the work. The pressure on contractors is enormous, and in some cases, can make them discouraged and less motivated to do their best. Despite working in a stressful profession, contractors should always strive to do their best; even if the owner is very, very difficult.

The reason for this is simple. A contractor or construction company's reputation can make or break his business. I have had clients receive bad reviews on known websites and seen them severely damage their financial condition. Unfair as it may seem, once a bad review is posted, it is extremely difficult, if not impossible to remove. We all seem to remember the bad reviews even if there are numerous good ones.
Marketing literature says getting a new client is hard. It is much easier to get new business from an old client, so it is important to keep the relationship on good terms. In addition, most established businesses get their work through word-of-mouth. In that respect, you are only as good as your last job. References are everything.
On that note, the other day I heard a story that amazed me. As part of my practice, I coach my clients on how to deal with difficult clients. Some have had the door slammed in their faces, the locks changed, received nasty emails or been wrongfully terminated. One client was having repeated issues with a job, but he handled every insult with class and respect. He never challenged the owner head on, followed through with his promises and asked for payment nicely. Meanwhile, he never knew what was coming next.
Imagine his surprise when he overheard the owner telling a friend what a great job his company had done! After all his trouble, this same client was giving him an excellent review and the opportunity for future referrals. So, the next time you want to throw up your arms and walk off the job, keep this in mind. It is really worth it to always strive for excellence.

Saturday, June 13, 2015

The Pros and Cons of Design/Build

It seems as though more and more contractors are branding themselves as design/build these days.  The process is attractive for both homeowners and contractors.  Rather than seeking the services of an architect, the homeowner only needs to engage one professional for the design and execution of a renovation project.  The contractor has a great marketing tool.  He can advertise as a “one-stop” shop that provides both the design and construction as part of a seamless, efficient process that will result in a less expensive, successful project.
What I have found in practice is that design/build has both advantages and traps for the unwary contractor and consumer.  The pros for the contractor are many:
  1. Earning a fee for both the design and the construction aspects of home improvement projects.
  2. Working with a design that has the necessary components for the construction phase. No unclear specifications that handicap the builder.
  3. Dealing with known in-house or independent contractors who have a preexisting relationship with the contractor. Fewer conflicts with unfamiliar design professionals.
  4. Longer-term projects and the ability to provide a greater variety of services to the customer.
  5. The ability to provide a lower bid for a job, since the specifications will not require as much detail as modifications can be made onsite.
  6. An additional creative outlet for the contractor
  7. More “bang for the buck” on one’s website since photos will reflect both design and construction ability.
That said, numerous clients have run into issues with design/build that can be prevented.  The most common problem is when client(s) wants to terminate the relationship before the construction phase, take the design and have it executed by someone else or want to stop the project altogether.  In addition, clients frequently don’t understand the process and request numerous revisions or designs beyond their budget.  Finally, I have seen numerous instances where clients do not understand the pricing and payment schedule associated with the project.
All of these issues can be prevented with a proper design/build contract.  This will be the topic for my next blog post.

Saturday, November 01, 2014

How to Get Paid When You’re a General Contractor

Image courtesy of satit_srihin at

The #1 complaint that I hear from contractors is that they have trouble getting paid.  They provide a service to an owner, do additional work when asked, and then when an owner is presented with a bill, the owner ignores it, pays less than asked or refuses to pay at all.  What is a contractor to do?

Here are the rules for getting paid:
  1. Start with a good payment schedule. The payments should be linked to milestones so the work does not get ahead of the payments or vice-versa.  Ask for payment at the start of a milestone to ensure reasonable cash flow.  For example: 10% at the start of plumbing.
  2. Ask for a reasonable deposit. Make it enough money to ensure payment for custom materials and make it non-refundable.  If you are a home improvement contractor in Massachusetts, the deposit cannot be more than one-third, and you have to include language in your contract stating that fact.
  3. Include a provision in your contract that allows you to stop work or suspend the job if a payment is not made when due. For that reason, make sure that the payment schedule is broken down into more frequent payments.  That way, if one is missed, it will only constitute a small percentage of the job.
  4. Charge finance charges. As long as your state allows you to do so, charge finance charges for late payments. You can also include a discount for immediate payment if you would like.
  5. Include a provision in your contract that entitles you to attorney’s fees and all costs of collection. In Massachusetts, you can’t get your attorney’s fees back if you don’t include a clause in your contract saying that you have a right to them if you have to pursue a customer for payment.
  6. Consider having a “pay when paid” clause with your contractors. Unless you are working on a commercial job in MA that is >$3,000.000.00, you have a right to wait to pay your subcontractors until you are paid.  This may not be great for your relationship with your subs, but it will put pressure on the owner to pay you.
  7. Insist that all change orders are in writing and reflect the change in contract price. In addition, indicate in your contract when payments are due for change orders.  Then, do not make any additions to projects without written change orders!
  8. State in your contract who will have the authority to sign change orders. If the owner asks others for change orders, make sure the owner understands that he will have to pay for all unauthorized change orders.
  9. Invoice on a regular basis and keep proper accounting of your job.  Guess how many owners are willing to pay for change orders that a general contractor discovers after final payment has been made.
  10. Finally, if all else fails, make sure you are in compliance with the timing of your state’s law for filing mechanic’s liens. Mechanic’s liens are an excellent tool for getting paid, but the rules for filing them are usually very specific, so consider hiring an attorney so they are done properly.
Next up:  How Subcontractors Can Make Sure They Get Paid.