The Contractor Agreement: 7 Steps to an Iron-Clad Contract

March 22, 2011

It’s spring!  Not only do we get outside to freshen up the gardens and lawns but we also take on larger home improvement projects.  We can have the windows open, walls open and roofs re-done.  Be careful!  There are many “contractors” out there and some of them are not our friends.  Follow these seven tips to make sure your contractor agreement works in your favor—not your builder’s.

Step 1: Hire a lawyer

Contractors use their own forms, which are drafted for their benefit, not yours. You’ll benefit from hiring an attorney to review your contractor agreement or draft one that’s you-friendly. Even though this may cost around $250 to $500, it can save thousands of dollars later if there’s a dispute.

Step 2: Take the home court advantage

Add a “choice of law” or “forum selection” provision, which says that disputes will be litigated on your turf. This provides protection against out-of-town contractors or suppliers—you don’t want to have to drag yourself across multiple state lines for a lawsuit.

Step 3: Create an incentive to finish

Define when the contactor will deliver on his promises, and when he’ll get his money. Within the contractor agreement, create a payment schedule in your favor by holding money back until the work is fully completed and you’ve verified the final payments to subcontractors. Maintain control by holding the purse strings.

Step 4: Reeling in a runaway contractor

The most common problem you’ll encounter is a general contractor who gets paid, but doesn’t pay his subcontractors and suppliers—possibly leaving you on the hook, according to Craig Robelen, a home builder in Boca Raton, Fla.

Robelen advises protecting yourself upfront by requesting the names of all professionals your builder will work with. Verify that your contractor has paid his subcontractors by requesting conditional partial lien releases during the construction term, and a final lien release at completion. (Have the general contractor collect them and present them to you.) These are essentially formal acknowledgments from subcontractors that they are being paid for work done.

Also, see if your contractor has a “payment bond” that guarantees subcontractors will be paid.

Step 5: Corral unauthorized costs

Your contract should state that any changes that will affect the price of construction should be in writing and countersigned by both you and your contractor. This protects you from unauthorized charges.

Step 6: Avoid kickbacks

Protect yourself from kickbacks—where contractors gets bonuses from their subs for referring business—by requesting that builders sign affidavits that they’re not getting any “fees” from subcontractors as a prerequisite for doing business with them. Keep costs well-defined by asking for a “bid summary,” which should show a minimum of three quotes in every cost category of your budget.

Step 7: Binding words

If you’d like to avoid going to court in case of a dispute, add a clause in the contractor agreement for binding arbitration. If there’s a problem, you and your contractor will plead your case in front of a non-biased arbitrator, whose decision will be final.

If your contractor balks on any contract point you feel strongly about, do some more research. Maybe what you’re asking isn’t typical for that kind of job. Talk with neighbors who have had similar work done and sound out other contractors regarding their policies on the disputed issue before you sign anything. This helps you determine what’s customary for your particular area.