Damage liability disclaimer in contract provided by builder (threads merged)

[grounzero]

I'm planning to open plan the ground floor of my house and am about to appoint a builder to replace load bearing walls and chimney with a steel frame to support the upstairs. During the party wall agreement process I discovered the neighbour has removed their chimney without proper supports which the structural engineer has taken into consideration.

The builder has provided a contract and there is one clause that has made me think twice.

'Any costs to repair damage caused to the property and adjoining neighbours related to the building work as necessary to carry out the project is to be covered at the Clients expense'

I do not want to sign this. Surely liability would be with the person responsible for causing the damage and that could be because the neighbour had work done that was no carried out properly. The builder is registered with FMB and has positive reviews on MyBuilder but this clause does not seem right. Should I refuse to sign, ask him to remove it or find someone else?

 

[^woody^]

Cross that clause out. It's far too onerous.

 

[Notch7]

FMB and has positive reviews on MyBuilder

That doesnt count for much really.

FMB is subscription based so the builder is their customer. They probably check the builder has the correct insurance and has a complaints procedure.

On line reviews on the trade sites are biased -critical reviews are often deleted or forced to change

 

[grounzero]

Cross that clause out. It's far too onerous.

I guess if I don't sign it it's not enforceable. Would still be good to have a contract in place. I will be checking his insurance and if necessary provide a copy to the mortgage lender as they will have an interest in the structural integrity of the property

 

[Brigade77]

Surely . . . The structural engineer is bearing some of the risk here . . . . ????

 

[grounzero]

Surely . . . The structural engineer is bearing some of the risk here . . . . ????

He was subcontracted by the builder.

 

[^woody^]

I guess if I don't sign it it's not enforceable. Would still be good to have a contract in place. I will be checking his insurance and if necessary provide a copy to the mortgage lender as they will have an interest in the structural integrity of the property

You can just cross out (or add) specific clauses in any contact, and the rest of it will still stand. You just have to both agree and sign it.

Any builder is still liable in common law, for damage caused by negligence. The builder is seeking to pass on to the client the costs of all damage (including that caused by negligence) with this clause.

Strictly, he can't escape his duty for damages caused by negligence, so in that respect this clause is invalid. But then you are in to vagueness and potential arguments as to what damage was caused by negligence and what was caused even after reasonable care was taken.

So it's a badly worded clause.

What it should say is that the builder should allow in his pricing for all labours and making good pursuant to carrying out the works. This puts the onus on the builder to take even extra care, as all damage is his responsibility.

 

[SammyInnit]

During the party wall agreement process I discovered the neighbour has removed their chimney without proper supports

'Any costs to repair damage caused to the property and adjoining neighbours related to the building work as necessary to carry out the project is to be covered at the Clients expense'

Why should the builder pay for it?

 

[motorbiking]

Woody is correct, but its not safe to rely on common law/negligence. There are one of two clauses you could add that will give you more protection. A reasonable skill and care clause or a competent professional clause. Start with the competent professional clause as its stronger.

The builder will undertake the work with all the skill, care and diligence reasonably to be expected of a competent professional builder experienced in undertaking the works similar in size, scope and character to the works".

If he wont go for that you can downgrade to "reasonable skill and care". You might also go further by defining fees for making good any damage caused despite the above. Your argument is that you want him to be commercially discouraged from causing extra work.

FYI - contracts aren't voided just because they weren't signed. He can still argue you agreed, by commissioning and paying for the work.

 

[grounzero]

You can just cross out (or add) specific clauses in any contact, and the rest of it will still stand. You just have to both agree and sign it.

Any builder is still liable in common law, for damage caused by negligence. The builder is seeking to pass on to the client the costs of all damage (including that caused by negligence) with this clause.

Strictly, he can't escape his duty for damages caused by negligence, so in that respect this clause is invalid. But then you are in to vagueness and potential arguments as to what damage was caused by negligence and what was caused even after reasonable care was taken.

So it's a badly worded clause.

What it should say is that the builder should allow in his pricing for all labours and making good pursuant to carrying out the works. This puts the onus on the builder to take even extra care, as all damage is his responsibility.

This is a very good point. I wouldn't be so concerned if it were just skimming some walls but as the whole house and upstairs floor system is going to be up on acrows the potential for damage is much higher.

 

[grounzero]

To put it into context the full text is here. It's the last sentence I think is vague.

The builder will carry out all work with sufficient duty of care, taking all reasonable efforts to avoid damage to the client's property, the property of the
neighbours or common areas of the building.

Work will be carried out by appropriately qualified and adequately trained professionals using the correct tools.

Only authorised work contained in the agreed scope of works will be carried out unless essential works are needed without approval to
maintain a safe working environment.

The client will always be contacted to ensure earliest approval as possible.

Any additional works to be priced separately and agreed by the Client before being carried out and factored into the Contract and interim payments.

Any costs to repair damage caused to the property and adjoining neighbours related to the building work as necessary to carry out the project is to be covered at the Clients
expense.

 

[motorbiking]

Is there an exclusive remedy/remedy or defect clause? If not its pretty much there.

You could define "costs" i.e. billed at cost.

 

[^woody^]

Here are some standard clauses used in JCT construction contracts, which refer to damage. In each case the contractor is instructed to allow for potential damage within his tender bid price. The costs of damage are not the responsibility of the client.

It looks like that contract had been knocked up by the builder. You can cross out his clause and insert your own.

Where it will not be possible to retain existing claddings and finishes etc. in a good and undamaged condition the contractor is to allow to provide new such materials and allow for all making good works to be completed to a good standard and to the satisfaction of the Employer and Contract Administrator.

Existing materials, components, equipment to be removed or retained.
The contractor should consider all the necessary costs for dismounting, deactivation, storing safely and properly protected to avoid any damage, and then reinstalling in initial condition.

Provide all necessary protection to fragile roofs and also to adjacent structures and roof coverings as required to prevent damage to parts of the building not forming part of the works.

 

[blup]

You could just add "except if caused by the builders negligence" to the original wording the builder has asked for.

Blup

 

[Leofric]

Sounds like a smart get out clause ! I would say refuse to sign it, ask him to remove it and if he won't and doesn't have his own liability insurance find someone else. Would be interesting to know what the FMB say about it.