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Question DetailsAsked on 1/9/2018

Can I cancel a contract if my siding project wasn't started on the 6-10 weeks time frame per the contract?

I signed a contract with Champion Window to have new siding installed on 11-1-2017. The contact had a 6-10 weeks time frame to start the project. The only updates I received were the ones I got by reaching out. I know the delay is on the complains end because the crew they had were fired and have yet to complete the privious install because of poor workmanship.

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Here are links to a couple of similar questions with answers - but there is no simple answer without knowing more about the case. Heck, in fact there is no easy answer with failure to perform cases unless you can prove the guy is an out-and-out scammer and skipped town with your payment.

On the no updates thing - that is the norm with probably almost all contractors - only the sqeeky wheel (er - cell phone or texter or eMailer) gets attention, as a rule. Heck, I have VERY commonly had the same problem even as the project boss or the one authorizing payments, even on multi or mega-million $ jobs. Most contractors take the position that the more contact they have with the client the more risk of being told the client wants some change - and it also takes time away from the dozen emergencies of the day or pending demands for quotes or estimates awaiting his attention. So few, at least once they have the job committed to them, contact the client. I the client wants contact, let them initiate it, seems to be the rule of thumb.

The squeeky wheel theory is also how many contractors do their scheduling - and the longer you let it go without seriously bugging him about getting on the stick the further down the schedule you may fall, having been identified as a client who is not going to complain about poor service. That is a major reason, in addition to not letting a bad situation get worse and "go cold", why not letting a contractor fall behind the schedule without immediately making a serious case of it is so important.

Couple of things regarding contract dates which catch people up a lot (and this catches professional developers and constrution managers and contract writers as well, for that matter - I have seen it happen on hundred million $ jobs):

FIrst, the contract should ideally specify both a start-by date AND a completion date, and for the courts to pay attention to those dates, it should state that the dates are "of the essence" to the contract - meaning they are a critical component to the contract. That also infers that the contractor would not have gotten the contract without accepting that time constraint, so missing it means he has badly failed to perform as expected by the contract. Actually, stipulating a start date is usually not as critical unless there is a specificd jobsite availability date (like for a major remodel requiring resident move-out or for a post-moveout presale remodel or "bringing up to snuff" say), both because he can commonly start later than planned and still finish by expediting materials shipments and by increasing manpower and resources on the job, and also because "start" is a real nebulous term - see next paragraph on that.

Even with dates stipulated (as it sounds like you have at least a start date in the contract, though 6-10 weeks is not a definitive date as it should be), it all comes down to the definition of "start" - sort of like the definition of "is" thing with Bill Clinton's impeachment. He could drop off a bucket of tools, a few boards, or whatever at your place - or even just take a few photos to show his crew or subs what the work site looks like, or take some measurements and that would all be "starting work" - as would technically just marking it in the work calendar as a "confirmed job". Placing an order for materials would also certainly constitute "starting" the job.

IF he is actually out of compliance with a contract term - like it said start within 6-10 weeks time AND that the job must be completed within 4 weeks of start of work, then if 14 weeks have gone by you could send him a notice of contract cancellation due to failure to perform under the contract, and demand immediate return of any deposit paid.

You could also contact his bonding company to have them pay to have another company complete the work per the contract, but you have less control over the selection or performance of the new contractor in that case than if you just cancelled the contract for cause. Those two words - "for cause" or "due to his default" or such terminology are critical, they mean you are cancelling because he defraulted on the contract, not for your convenience (which might allow him to keep the deposit or claim damages for termination).

One thing you probably do not know is, assuming he has not defaulted on a mandatory contract completion date, whether he has actually "started work" or not - if so as described above, you have no cause to terminate until he misses the contract completion date.

Now the catch-22's on the "dates of performance" and "start of work" issues:

1) if your contract has no completion date, it might not even be a legal contract because having a stated period of performance (which might be inferred as from contract signing date to stated completion date if no start date is stipulated) is normally considered an essential element of a contract for it to be legal - along with compensation and dated signatures and scope of work and such.

Otherwise he could just do some little thing to demonstrate that he has "started work" up front, which many contractors actually do as a matter or course immediately after contract signing to ensure the "work is underway", to inhibit terminations for the convenience of the customer and to retain the deposit if that is defined as a remedy in the event of client termination for convenience. Sort of like cops touching a car's taillight as they move up to talk to the driver after a traffic stop - doing some little thing, even just pulling off and nailing back on a piece of door or window trim to check the siding thickness or presence of insulation or such, can serve to leave a markk that he was there and "started work". If the contract does not spell out a completion date (or some mechanism or formula or contingencies from which a reasonable person could compute a firm and uniquely definable completion date, like the start + 4 weeks example above), then you would have to have an attorney look at the contract to advise you on whether it is legal or binding or not, and where to go from here.

2) You also do not know if he has started any work - like ordering the siding say.

So - unless you just want to terminate per above paragraphs (and should have an attorney's input if going to do that to preserve all your rights), I would send him a certified return-receipt signature-required letter stating he has not started the work by the date specified by the contract (let him bear the burden of refuting he has started work if he can) so you intend to terminate the contract for non-performance. If you know that he does not have a crew to do the work, you could also state something nebulous like that it is your understanding he has lost his crew (phrase it nicely) so it appears he is also unable to perform the work, so you are requesting he, within 7 days, send you a signed and dated voided copy of the contract and refund your full deposit (if any). Then see where it goes from there. And of course keep copies of everything, including mailing and delivery confirmations, and document anything from here on in writing and photos.

One other thing - I would check if his local / state (as applicable business license and (if required for siding contractors in your state) his contractor license are up to date - lacking them would give you another "cause" for termination to go in the letter.

Hopefully, he would not try to hang onto the job and will let it go because of his inability to get his backlog done on time - he may be glad to get rid of the job if he is overbooked, though if overbooked that might mean other contractors in the area are too (like if in one of the hurricane areas) so you could lose some time getting another contractor to work. Course, if you get winter in your area, and assuming this is not an emergency or insurance job with a short fuse, booking a spring/ewarly summer reroof might be better for you now anyway, because winter condition roofing jobs are generally to be avoided if possible - for work quality reasons and also because composition shingles tend to crack when nailed or walked on in cold conditions.

And of course, when all is said and done, an appropriate (with your attorney's vetting of it, if you involve an attorney, so you don't violate any terms of any serttlement agreement) Review on Angies List sounds in order.

Answered 2 years ago by LCD

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