As a consultant specialising in disputes and problems between clients and customers, I see many different issues that have arisen through misunderstandings and lack of accurate specification, inexact contract wording and, often, over-reliance on the goodwill of one party or the other.
It is fair to say, that I never know what the next email or telephone call will bring. I have to remain 100% impartial, otherwise I could not do my job. Any suggestion of bias would render my reports and findings unacceptable to a court or dispute resolution tribunal. I follow due protocol, as laid down by regulation, but I also follow my own strict code of practice to ensure that I maintain due compliance, and that I do and say nothing that could jeopardise my commission.
Recently, I have had a spate of commissions that are very similar, in that they derive from situations that are not so easily spotted when agreeing terms with a client. Both designers and contractors failed to mention the most basic, most fundamental element of contracting — failing to identify the owner of a property. They had correctly identified their client, whose name and address were duly recorded in the letter of quotation and contract, but they failed to confirm the name of the owner of the property on which they were to work.
To illustrate, here are four genuine cases, each different but each touching on the failure to confirm who actually owned the garden.
1- Close board fence
The first concerns a landscaper who had contracted to erect a close board fence as part of a larger project. Having established that there were no planning issues, inasmuch as the structure was to be the same height as the original, the fence was to include a new matching close board gate leading out onto a footpath.
During the operation, the contractor was approached by a third-party individual who promptly forbade the works to continue because the contractor was trespassing. In any event, the customer had no right of access onto the footpath, which was privately owned. Work was stopped while the owner and customer sorted things out, which involved solicitors and certain fees and licences to use the footpath and access onto the land.
None of this affected the contractor, except that his work was delayed by several weeks, causing the rest of the scheme to be deferred until the next suitable season.
2- Farmer’s field
Another case also involved trespass. This time the landscaper needed to cross a farmer’s field to gain access for machinery to a rear garden. He approached the farmer and agreed a sum of money to pay for the use, and although the contractor used ground boards and created no mess at all, work was stopped when an individual drove past, stopped his vehicle and promptly called on the landscaper to get out of his field.
It transpired that the farmer was only a tenant and he had no right to permit access to a third party across the property. Again, the contractor was not involved directly, but work was delayed while the matter was sorted out and permission finally granted by the actual owner.
3- Landscape project
A more serious matter concerns a couple who commissioned a full landscape project for a new build house, to include paving, planting and turfing. They appointed a landscape contractor, who provided them with a fully detailed quotation, which was accepted and works commenced. Their primary stipulation was that the works had to be completed by a certain date.
The contractor agreed terms, taking a deposit, arranging for the final invoice to be settled within 10 days of practical completion. The job was fairly small and the paperwork was in order, with the client’s name established in the contract. When the work was finished and the contractor sent in his invoice, the customers had disappeared, having left the country to work abroad.
It transpired that they were only renting the property from the real owner, who allowed them to live rent-free for six months in return for them having the garden landscaped as payment in lieu of rent.
While this example is unusual, and one would hope that it could have been dealt with by the police, it was deemed to be a civil matter and the contractor was left with a £5,000 shortfall — including VAT, which he had to pay to HM Revenue & Customs. Had the contractor established that the site was owned by their customer, and that they were not tenants, it would have been deemed a criminal offence, not a civil matter, and the police could have pursued the case.
4- Hedge removal
Another dispute arose when the owner of a large country house decided to call in a contractor to take down an old neglected hedge and replace it with fence panels. Several small trees were growing in the hedge, maintained to the same height as the hedge, with brambles and ferns proliferating.
The contractor, having removed the hedge, using a mini-digger to grub out the stumps, was accosted by the next-door neighbour, who was extremely angry. Once again, the contractor was caught in the middle of a dispute, especially as it transpired that the customer knew that the hedge was not his and hoped that once it was cleared he could have his fence in place of the scruffy old hedge.
On this occasion, however, the real owner of the hedge sued both the customer and contractor under a joint and several action. Although the contractor was exonerated, he spent many anxious months waiting for the case to be heard.
It may seem unnecessary to have to establish ownership of a property, but these recent cases illustrate the need to be very wary, especially regarding questions of boundary or access. Ask the question and ensure that the answer is recorded in your quotation documentation.
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Alan Sargent is an independent gardens consultant