The devil is in the detail - Part 1

Dear builders and those who want to become builders,

I would like to take a question from a user as an opportunity to point out the subtleties – or rather possible fine points – in contract drafting. In the specific case, the builders were informed during planning that the finished floor on the ground floor must be at least 35 cm above ground level to avoid possible construction damage due to moisture. The result could be that the users then accept steps to the house that they actually did not want, or have to bear additional costs for a sealing that was initially not contractually agreed upon.

This is a "classic" surprise in the planning or construction phase. As a rule, a construction contract is signed with a general contractor – hereafter simply called GU – before the planning, so the height alignment of the house is not precisely defined. In the contract, the GU describes his conditions on which the contract price is based. The topic of height alignment is usually only briefly and curtly mentioned, for example that the finished floor lies 30 cm above ground level. Sounds logical, after all, we know that it is good if the water flows away from the house. Sometimes one or another builder assumes this will be compensated with the outdoor facilities in order to have as level a transition to the garden as possible.

Possible results of the initially described case could be:
- the users accept steps to the house that they actually did not want
- additional costs (change orders) arise for sealing that was not contractually agreed upon
- the builders fill the ground after completion to such an extent that the height difference described as a condition by the GU is no longer maintained – if moisture damage then occurs, the builders are to blame.
None of these results is satisfactory, although the GU can be accused of insufficient clarification, legally the GU is on safe ground.

The example described above is just one of many traps hidden in the seemingly harmless wording of construction contracts and their building descriptions. Even more difficult to assess than the small print is what is not printed.

Please forgive me for advocating – as a professional construction supervisor – that an external expert consultation be obtained before signing the contract. However, the greatest potential savings in expenses and trouble lie precisely in the phase before the contract.

Hello baucoach,

Please forgive me that, as a professional construction supervisor, I advocate for an external expert consultation before signing the contract. However, the greatest potential for savings in expenses and trouble exists precisely in the phase before the contract.

I can only agree/confirm that!

Unfortunately, it is easier to "lead a camel through the eye of a needle" because, according to my experience, it cannot be simply distinguished in absolute black and white or as a bad BU/GU/BT and poor client. Many clients do not understand that reviewing/evaluating their construction documents saves them real money and trouble—let alone external construction monitoring measures. The resources they must spend on one or the other or ideally both measures contradict their confidence in their own abilities. It should only be mentioned in passing that a decision in favor of a BU/GU/BT is made in the vast majority of cases based on the smallest number at the bottom right.

Two weeks ago, I was a guest at a trade fair in the Rhineland; next to my host, a representative of the Verbraucherzentrale NRW had their booth. As always at trade fairs, there are idle times, and I used these gaps, among other things, to maintain my contacts with the local Verbraucherzentrale representative and a master craftsman guild master. One of the discussion topics was the practice of incorrectly submitted Energy Saving Ordinance certificates as well as the discrepancies between the BB signed by the clients and the actual execution/implementation during construction. I was quite surprised when I realized that some "tricks" are now also being used by providers I previously knew to be reputable. If it leaves me, an "old hand" in this profession, speechless—how is a layperson supposed to recognize the pitfalls without professional support?

My current hope rests on the courts and judges; recently, more rulings in favor of providers are being issued again. On the one hand, so that clients can no longer arbitrarily reduce payments, and on the other hand, so that they fulfill their cooperation obligations better. The coming years may be interesting not only in the areas of renewable energies/new materials in construction but also in a change of mindset on the clients' side.

Kind regards

If you receive the contract for work,... who can you turn to for a quick review of the construction description and the contract? How do I recognize their competence? Can confidentiality be agreed upon? I’m just saying: small town,... everyone knows everyone.

Hello,

If you are presented with the contract for work,....... whom can you turn to for a quick review of the construction description and the contract? How can I recognize their competence? Can confidentiality be agreed upon? I just say: small town,... everyone knows everyone.

No one intends to go around with your data; at least no one who works professionally!

You can, among others, commission any lawyer you trust specializing in construction law, consumer advice centers, independent experts, or also construction consultations like ours. It is always important that the documents are considered as a whole and that the person reviewing the documents has sufficient experience in construction. No matter who you ultimately choose, this money is always well invested!

Kind regards

Hello Baumensch,

a construction contract or a construction and performance description as well as other offers for construction services should be checked externally - that is, by someone who is in no economic relationship with the provider. Of course, the professional competence should also be demonstrably present. Proof of professional competence can, for example, be a corresponding qualification, e.g. a civil engineer with experience in building construction, an architect, or similar. It is important to distinguish between legal advice - for which only lawyers are responsible - and technical/professional advice, as mentioned in this context. Naturally, qualification alone is no guarantee for proper advice.

The problem we describe is not only in the technical construction area, as some "construction foxes" can offer, but it is especially about recognizing the subtleties in contract design - here real experience in reading and assessing contractual documents is required.

When it comes to checking the contract documents, this does not have to be done by an advisor from the local area - much is done anyway by email and telephone. However, for construction-accompanying review, it makes sense to find an advisor from the nearby area, depending on how much control one wants to have.

Confidentiality can of course be agreed upon. That is also part of clarifying the scope of advice. Often it is the case that builders initially have a good feeling about the provider and do not want to burden the good relationship by involving external construction supervision - that looks like mistrust. That is understandable but at the same time dangerous. Because with such a high investment, one should not let only the initial good gut feeling decide. I have experienced that reputable construction companies have no problem when it becomes clear that builders simply want additional security.

If someone still wishes a discreet consultation and the construction supervisor should remain in the background, it is also practical that builders receive a very specific checklist from the advisor after evaluating the offers. With this check or question list, the builders can then specifically ask their providers for information. Therefore very important: have documents given and do not sign anything immediately.

Basically, it is about the fact that builders also decide according to their "gut," the construction supervision is supposed to soberly and purely practically check and evaluate the offers - so to speak as a purely rational counterbalance. Consideration to not disturb the good mood towards the customer advisor of a house provider is completely out of place. In the end, it is only about a as smooth and defect-free construction as possible, within the estimated costs.

It is still a phenomenon that people do not really dare to involve professional support for building a house - we do go to the doctor or lawyer as well - when questions and problems arise.

Thank you for that, now that's a statement. We are currently on hold, planning and costs should be finalized at the beginning of November, then it’s on to the details. Successful week!! And thanks again......