Property Litigation and Real Estate Law: problems with developers and builders (building problems and defects) : I have dismissed my builder and he is threatening to sue.

CONSULTATION:

Dear Sir,

The builder doing works in my property has not been doing a proper job so I told him that I did not want him to continue. I have paid him for the works done so far but he claims that I have to pay him the total amount agreed for all the works and he has threatened to sue me. What should I do?

Dear reader,

Thank you for your query.

Firstly it is very difficult to give you legal advice without having full knowledge of your situation.

However, if we take it that you have paid for the job done correctly so far, but you do not want him to continue with any more work, then a good place to start will be by studying the contract closely. And if appropriate you should formally notify him that you do not wish him to continue with the works; which will be best done through a lawyer expert in Property and Real Estate Litigation law to avoid any confusion.

It is also advisable to prepare in advance for a potential lawsuit from the builder by collecting now all the evidence that shows why you should not pay the full agreed price since the builder has NOT fulfilled all the contractual obligations exactly or correctly. The breach of his obligations is of great importance because it ought to be recorded that your expectations as the client have been not been satisfied, and neither has he met the contract entirely; this is called ‘exceptio non rite adimpleti contractus’.

Therefore if you are able to prove non-compliance from the builder, the judge will not find grounds in the builder’s argument, as the builder cannot ask to be paid for the entire contract, as if it had been seamlessly and entirely accomplished; as doing this would be an unacceptable imbalance in the obligations and benefits of the parties.

Hence, having a construction contract you must prove that the works done are faulty or incomplete and therefore should not result in the payment of the rest of the money agreed upon; serving as exemption for the required payment by showing the deficiencies in the execution of the works. But it is very important for you to understand that you will have the burden of proving the lack of compliance.

This leads to the point that it will be very advisable to certify, by means of an architect’s report, the construction defects and items of work not completed; and possibly also stating the costs for having the items fixed or repaired.

Indeed, it is very important to have evidence of the defective construction works status by the above mentioned manner or other similar, before making any repairs; and also be able to prove that the completion of the works have been done by you.

It is also highly advisable to seek and keep all invoices especially those for construction material, equipment and other builders’ services. These invoices will serve as proof of the additional expenses you have had to pay (or will have to pay) to fix the faulty construction works or to complete them.

In relation to this type of payment exemptions for defective construction works we have recently obtained a positive ruling from the 5th Section of the Alicante County Court (Audiencia Provincial de Alicante Sección 5ª) dated 20-09-2011 in which the Court revokes the previous Ruling from the First Instance Court and totally dismissed the Lawsuit filed by a builder against our client stating that: ‘The refusal to pay the remainder of the money by my client was justified by the existence of defects in the performed works and the lack and poor quality shown in the completion’.

In your particular case and as noted above, we advise you to seek legal advice from a legal expert in this field (Property and Real Estate Litigation law), regarding the steps to follow and the best way to demonstrate and record the builder’s failures.

Should any reader find himself or herself in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.

The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.

We kindly invite you to visit and comment about this article in our blog and facebook (White-Baos-Abogados-Solicitors) your comments in this respect will be greatly appreciated.

White & Baos. Tel: +34 966 426 185. E-mail: info@white-baos.com
White & Baos 2011 – All rights reserved.

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