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Would be good to get some clarity from the OP on the payment terms in this contract.
IT would be good to get some clarity on his moral compass…
It would be good to get some clarity generally.
You are taking the mick if you think it's reasonable to ask for the 5% DEPOSIT back if you are cancelling the job - let along try to fight for it back.
Taking. The. Absolute. Mick.
Have a long hard look at yourself in the mirror! You are quite literally messing with somebody's livelihood. Being self employed is not a walk in the park. Clients like you are the absolute bane of life. You should be apologising profusely and trying to find them another customer to fill the time they allocated to you!
Jog. On.
Well that escalated quickly.
Sorry I haven't read all the above posts...but I have to admire your balls in even asking. Sorry if it's a job loss or separation, but just chalk it up to a life learning lesson.
I have had a few requests for deposit release for change of mind villa bookings, 20th year of letting and none yet refunded.
Keeping the 5% is completely reasonable on a domestic extension or similar little job. I had to pay £100k just to get a main contractor to price and plan my current project, let alone the penalty clauses that will happen if we cancel or he's late. £25k a week anyone?
would be good to get some clarity on his moral compass…
Irrelevant.
This is about legal rights.
OP could contact the FMB to ask what 'reasonable' mitigation they would expect a member to take in these circumstances - unless the FMB is now nothing more than a pay'n'display operation.
As for various comments about subbies - that risk sits entirely with the contractor; any attempt to withold money based on a claim that a subby walked is nothing other than sharp practice.
If the builder is any good he will have a full order book and OP's cancellation is unlikely to have much effect; witholding the deposit is a try-on.
Well that escalated quickly
Didn't it just - with little, if any, recognition of government guidance, client rights and a clear attempt by the builder to hold onto the deposit with spurious 'justifications'.
No doubt the 'noise' will continue.
No doubt the ‘noise’ will continue
Yeah, yeah. Wah waaahhh. Another one. That's 3 on here everyone now knows not to do business with.
As for various comments about subbies – that risk sits entirely with the contractor;
Hence taking a deposit to mitigate against the headache and cost of a cancelation?
We could go round in circles all day and I appreciate your angle, but we don't really know enough. On the surface it looks to me as if the OP is being a bit of a Karen.
Anyone else wracking their brains to liken this situation to a current geopolitical goings on?
Anyone else wracking their brains to liken this situation to a current geopolitical goings on?
Errr no. Next question please. 😉
As the OP was now in contract with the builder he is subject to the terms of that contract
But the contract will be for the actual work that has been quoted for to be carried out. It's not for any of the preamble that went into drawing up the quote in the first place - spending money on quoting and tendering for no return is just part of running a business.
Don't get me wrong, I certainly don't think the OP should be getting everything back just on a whim.
The question is what has the 5% been paid for?
All local tradesmen work with each other, talk to each other have business relationships. If you're a dick about this, I expect you'll be looking at a 50% deposit if you want to resurrect the project.
One of the last ones:
https://singletrackmag.com/forum/topic/legal-advice-please-cancelling-a-new-car-dispute/
"Irrelevant.
This is about legal rights."
Maybe in your world Frank....
I wonder how understanding the OP would be if the builder had changed his mind and didn't want the job? I'm sure he'd be so very understanding, or on here asking how much he could sue the builder for.
It's also interesting good see those members whose values don't extend beyond pounds, shillings and pence, sorry, legal rights.
I'm going with Binners on this one.
Well, anyone can sue anyone else for anything they like. Whether they will succeed or not is a different kettle of fish.
his claim about subbies doesn’t stack up but managing/retaining subbies is his problem, not yours.
He is managing them.
All the talk of bring another project forward, haha. The subbies he needs for the future job that’s been brought forward probably aren’t available as they are booked up for a job that’s not been cancelled. The subbies he’s let go aren’t the right subbies for this easily movable job.
So he is managing them.
Jobs don’t move with no input or cost. As unorganised as a builder may look, there is still planning happening. Yes they are planner, project manger, procurement manager, lead builder, labour and tea boy; this leads to them looking unorganised at times but they are busy. Trying to make a profit, that dirty word half of STW thing nobody should make??
Also it has been asked but what was the value of the job? 100k gives 5k. Wouldn’t take us long to use 5k in what we do.
keeping the entire deposit without performing any work,
As I said in my first post he has performed work. He has started organising the job. This actually the key to being a successful builder, and how you make money, is in organising the job. You may also labour if you are skilled in one or more trades but really you are hiring a company to organise a construction project. Work starts long before someone is onsite.
When I read the topic title I assumed it was the builder that cancelled!
If the changed circumstances are beyond your control then it is an unfortunate situation but imo you shouldn't pursue it further.
Your asking someone for £2k that they may well have spent thinking the job was a sure thing. It's not right morally and I'd be amazed if you had any luck legally.
Is this going to be TOTW?
Don’t get me wrong, I certainly don’t think the OP should be getting everything back just on a whim.
The question is what has the 5% been paid for?
This is the crux of it really.
Contractually, or prior to forming the contract, there was no mention of the deposit being non-refundable. Looking at the contract, the payment schedule is for certain milestones for work. The deposit is also to be offset against services/materials that are invoiced for. So far, there have been no invoices, and work is not scheduled to start for close to 3 months. I am struggling to see how the deposit paid so far has consumed any of the work that has already taken place given what I've been told.
Given that currently there is a lot of demand for their services, they could avoid loss of work. Given the materials shortage, they could not even incur a restocking fee from their supplier.
Again, I'm not unaware of how this looks to people criticising the decision. It is not one that's been taken on a whim.
All local tradesmen work with each other, talk to each other have business relationships. If you’re a dick about this, I expect you’ll be looking at a 50% deposit if you want to resurrect the project.
I was going to mention that. Us self-employed and small business owners in any given industry, in any area, are an incestuous bunch. We all talk to each other and bad news travels fast regarding arsey customers
If you get shirty and go legal then good luck with getting any building work done in the future.
I’m sure that any future enquiries would have everyone saying they’re too busy but referring you to Gary, or ‘Dodgy Gary’ as they all call him, who will be handily available to start your job straight away
From what I can see you're looking at work north of £50k which is possibly incurring CDM consequences so aside from sorting subbies etc there may well have been planning/activities associated with complying with that.
I think you're taking the piss with asking for the deposit back however there is a general principle that costs should be mitigated by both parties. That said it would be fairly easy for the builder to demonstrate they have incurred 5% unmitigatable costs even now.
Contractually, or prior to forming the contract, there was no mention of the deposit being non-refundable.
The word deposit means non refundable, unless it's referred to as refundable,in which case it shouldn't really be called a deposit. Have you not been on this planet long?
The contract will define the terms under which you can cancel it, you really need to open your eyes and read stuff more carefully, don't sign contracts and instruct someone to do work if you're not certain it will go ahead. Or if you are not certain it will go ahead make sure that both parties are aware of this possibility and any contracts reflect it.just let this be a life lesson
The deposit is there so that you have skin in the game , to stop you from instructing someone to commence work (and incur costs - costs being direct and indirect ) and then changing your mind,leaving that someone in a tricky position.
If there was no deposit (and hence no financial commitment from you) you could go round wasting everyone's time willy nilly, as you seem to want to do now.
Sorry but I don’t believe 3months is sufficient notice. Builders around here are booked months in advance. So he might get some smaller less profitable jobs to fill the time but he is legally entitled to offset lost profit from your job against the deposit (as I read the guidance previously posted).
I think this will come down to what you can prove and how good the solicitors are.
Contractually, or prior to forming the contract, there was no mention of the deposit being non-refundable
Was there any mention of it being refundable? And if not why on earth would you assume it was refundable when literally nobody else would think that ?
Edit
The word deposit means non refundable, unless it’s referred to as refundable,in which case it shouldn’t really be called a deposit. Have you not been on this planet long?
This
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Sorry but I don’t believe 3months is sufficient notice. Builders around here are booked months in advance. So he might get some smaller less profitable jobs to fill the time but he is legally entitled to offset lost profit from your job against the deposit (as I read the guidance previously posted).
This. It's an opportunity cost to the builder: the difference between the OP's cancelled project (and associated costs) and the jobs the builder can pick up instead. I suspect the 5% deposit would not cover it so perhaps the OP should think carefully before pursuing it.
I know I shouldn't be, but I'm surprised by how extreme some of the views are with the pretty limited amount of information that the OP is willing to divulge.
Aidy
Free Member
I know I shouldn’t be, but I’m surprised by how extreme some of the views are with the pretty limited amount of information that the OP is willing to divulge.
Think there's a lot of self employed who've been through this scenario on this thread!
Think there’s a lot of self employed who’ve been through this scenario on this thread!
Or people otherwise 'in business' who don't appreciate being messed about by chancers.
I know I shouldn’t be, but I’m surprised by how extreme some of the views are
I’m constantly surprised by how a lot of grown adults seem to have so little comprehension of how the real world functions and/or how little consideration they have for the implications their actions have on others
In relation to people saying quoting for work is a cost of business, yes it is and it is factored into the cost of the jobs to claw it back.
Friend of mine worked out he spent 50 working days a year on providing quotes. Any employees about to give up 2 month's pay?
I think if the builder looked into his time spent and booked every thinking minute related to your job and contracts of supply and service he may have planned in relation to it, equipment invested in for your job and his time to invoice this amendment you may have a larger figure owed.
I’m constantly surprised by how a lot of grown adults seem to have so little comprehension of how the real world functions and/or how little consideration they have for the implications their actions have on others
This is Binners' grown up brother Shirley... 😀
I’m constantly surprised by how a lot of grown adults seem to have so little comprehension of how the real world functions and/or how little consideration they have for the implications their actions have on others
Unfortunately, I'm less surprised by that now.
At the point I'm paying a deposit, I consider that money spent...... ie: losing that money is the cost (to me) of cancellation. If the contract gives me a 14 day grace period on that, great, but it further demonstrates that the deposit is otherwise non-refundable (which I agree, is what the word "deposit" means).
My willingness to book the work will depend on the size of the deposit vs my certainty that the work is going to go ahead. The bigger the deposit, the more certain I will need to be that the work will go ahead.
If you feel that you have been genuinely ripped-off, then by all means pursue it - but I would say that you chance of success is about zero. It's going to be relatively trivial for the builder to demonstrate 5% of "costs" incurred by him - and even if he falls short, then any amount that you are going to claw back is going to be offset by your time/energy/costs in doing so.
Chalk it up to a life lesson and move on, is my advice.
I wouldn’t have the gumption to chase them for a deposit refund, money spent in my view once you book a slot and commit to the job.
Might be a tone thing, but “gin palace” and “nice bike” did make me a bit less sympathetic to your predicament.
On a slightly smaller scale, our cat was booked into a cattery over the Christmas holidays. We paid a deposit, but she died and I had to cancel the booking. Did not even cross my mind to ask for it back, very surprised when they sent it anyway so donated it to charity and let them know. Think we won’t have problems using them in the future.
If you go the legal route, not sure you will have much joy with local builders taking on work 😉
Either the OP or the builder is misunderstanding the legal position. That's not going to be resolved on an internet forum. The OP should just talk to a lawyer and see if they think it's worth pursuing.
IANAL however I have taken and passed the Chartered Insurance Institute's Advanced Diploma in contract law so have some knowledge here.
Of course we are a little light on detail however honestly, I think you'd have very little chance of demonstrating you entered into an unfair contract. A 5% deposit is hardly onerous even if the builder hasn't incurred any material costs. As others have said, moving jobs around etc isn't easy nor cost free on the part of the builder.
Further, unless you were put under pressure to have over the money immediately you entered into the contract willingly and the fact they have a 14 day cooling off period weakens your position exec if you did feel under pressure initially. 14 days is pretty standard for a cooling off period also.
As others have said, by definition a deposit is non-refundable unless stated otherwise.
However, if you do wish to pursue it you have 3 options that you may want to explore.
1/ Just go straight to the Small Claims Court. I have used them a few times as a claimant and have also been a defendant. Every time the judge was reasonable and fair and I think the service overall is excellent. A hidden gem of our justice system and we are lucky to have access to it.
Due to the covid backlog you may be waiting a year or more for a hearing though. The cost is around £80 and from memory there is now an additional small amount that the claimant has to pay if they lose.
You would of course get your £80 back from the defendant of you win.
Just be aware that the defendant can make a counter-claim (there is even a space to do so on the paperwork they receive so it may give them ideas) so as well as it potentially taking ages you may find yourself defending your position as well as trying to formulate your claim. In particular as a self- employed person the could easily claim for days of work to attend the hearing and their travel costs. They may try for other things as well.
Note also that you will have to go into the details as to reasons you cancelled the job. The court won't accept 'I cancelled but don't want to go into it thank you'.
2/ if your house insurance has legal expenses cover you could call their helpline. Note they operate on a 'prospects of success' basis. They will assess your claim and decide if you have a greater than 50% chance of winning. If you don't they won't take it on.
If they don't take it on for you it'll be a good indication that if you were to then take it to the SCC yourself that you're likely to struggle.
3/ many solicitors offer an initial 1 hour free consultation. Find one that does and give them a call. However, unless there is some key bit of missing information here I don't think they'll use the full hour here.
Good advice above
My 2p, not really adding anything but again just as Barry Homeowner myself and my layman's understanding of the way this works, to add my vote as to whether you're having your pants pulled down, or being a dick.
A deposit secures his services. It's your commitment to do the work and his to not take on other work in its place.
Deposit means non-refundable. It it was refundable, it would say so.
The fact it also says refundable within 14 days just cements further that it means non-refundable after 14 days.
If that wasn't clear to you at point of signing the contract, you should have asked. Although 'just to be clear, if I cancel this at any point I get this 5% back right?' would probably see him disappearing with his unsigned contract to do some other work anyway.
I can't comment on the legal position but can share my observations of a good friend who is a builder.
For ever, he has never been off duty. His phone would ring day and night - if we were in the pub or at the football he'd disappear for 10 minutes here and there very regularly to sort out yet another issue.
however, I never considered what a builder does when they are not building until recently I was round his...a wall planner stretching out across the year with chunks of time allocated to planned jobs. The whiteboard next to it detailed each 'chunk' of activity and it was astonishing. I don't know why, but I always figured he went off in his van and built stuff. The logistics of sequencing of trades to a very tight timetable, the booking in advance of the stuff like diggers, scaffolding, mixers, this conveyor belt thing that takes tiles and bricks to the first floor...it was like a military operation.
Just one trade subbie pulling out would impact, but as has been stated above they build a reputation on not pissing people around - they all seem to know the lads they won't work with again.
I reckon if I asked my mate to qualify his expenses for a project 3 months out, even knowing what I know about the way he works I would be surprised at the amount.
(and for the record, I would feel very uncomfortable going back on a verbal agreement...let alone a contract that I had signed weeks ago)
Good post from xc-sc. I had a major building project at my house a couple of years. I do project management for a living and I was blown away by the planning, logistics, procurement and resource management of the guys who called themselves joiners (but who were main contractors). They did all of this whilst working 10 hour days on site actually building stuff.
The laying of bricks and building of frames is just a small part of a huge volume of work. I think you are stretching things to think you have a fair claim to claw back your deposit.
How much is the deposit?