Two years ago, my wife and I signed a contract to build a pool. During the process, the contractor did not perform as expected, so we decided to get out of the contract. We live in Florida, so there are a number of items that we need to consider before exiting any contract.

To be clear, I am not a lawyer, and this is not legal advice. If anyone reading this is having difficulty with their builder, contractor, etc., they should contact a lawyer.

Brief Summary of Our Steps

1. Notify contractor of the breaches in the contract
2. Ask for a list of subcontractors and the amount due to each of the subcontractors.
3. Our contract made us wait two weeks for the contractor to cure the breaches.
4. Send a notification of termination to the contractor
5. Contact each subcontractor and individually request a lien release.

Step 1: We Read our Contract

One point to note is that our contract did not have a non-disclosure clause, and we did not have to sign one separately. This means that any language quoted here is not in breach of the agreement. I only list what is needed if the verbiage is important to my notes.

Our contract had a clause that discussed remedies in case either party was not happy with how the other performed.

REMEDIES. In addition to any and all other rights a party may have available according to law of the State of Florida, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving said notice shall have 14 days from the effective date of said notice to cure the default(s) or begin substantial completion if completion cannot be made in 14 days. Unless waived by a party providing notice, the failure to cure or begin curing, the default(s) within such time period shall result in the automatic termination of this Contract.

The Key points here are:

1. We needed to write a letter listing the issues
2. The Contractor had two weeks to cure or at least start fixing the items
3. If the problems were not substantially completed within 14 days, the contract would be terminated.

We re-read our contract a 2nd time. This time we listed all of the items that we thought were potential breaches of the contract. We came up with:

1. The pool was not compted within the estimated timeframe stated in the contract.
2. The pool builder let the permit expires.
3. We listed all of the verbal promises made by the contractor that were not completed.
4. We listed all of the workmanship that was not performed to industry standard. In our case, this included pool symmetry and tank height.
5. We listed any property damage caused by the contractor. This included a cracked sidewalk from the heavy equipment. We did not include the tracks or missing grass due to normal construction happenings.
6. We listed all of the payments we had made and all of the outstanding work within the scope of the Contract. For us, this included work not yet started, including the installation of equipment and pool decking.

In reading the contract, we also found that all official communication needed to come to be done in person or certified mail, return receipt requested. We chose to mail it for an official record.

Step 2: Getting the list of subcontractors (and other 3rd parties involved)

In Florida, the homeowner is responsible for making all subcontractors are paid. This means that if the contractor does not pay their subs, the 3rd parties can still put a lien on the property. This is true even if you homeowner paid the contractor. A homeowner may end up paying both the contractor and the subcontractor or vendor for the same work if the contractor does not pay the downstream parties.

That said, there is a way for a homeowner to find out who may have a right to put a lien on the property and if they have been paid. We included the paragraph below at the start of our letter.

First and foremost, the <Homeowners’ Name> request pursuant to section 713.165 of the Florida Statutes that <Contractor> produce a list of vendors, suppliers, subcontractors, and any other person or entity that did work on the <Homeowners’ Name> property as well as any amounts due to each.  You are required to respond within 10 days from today.

This means the same letter had two dates in it. The contractor had 10 days to give the lists of parties involved with the project and the amount due to each. The contractor also had 14 days to remedy any of the issues within the contract.

Step 3: Send a Termination Letter

Once the appropriate time had passed, we sent a termination letter. The letter listed all of the remaining breaches of the Contract and our attempts to resolve them with the corresponding timeline. We stated in the letter that we were terminating the contract with cause. This was again sent certified mail, return receipt was requested.

In the letter, we also repeated the request for an accounting of all of the subcontractors, vendors, or other 3rd parties that supplied labor or materials for our job and asked for the amount due to each.

Step 4: Pictures and Videos and the Posting of the Property

After we sent the termination letter, we went around the property and took pictures of everything. We also recorded a video of the property with us, explaining anything that was worth pointing out.

“No Trespassing” signs were posted on all of the entrances to the property, including the front door. It stated that no one was allowed on the property without homeowner permission and that the contract with the pool company had been terminated. We locked the gates with a padlock and took a picture of that too.

Step 5: Cleanup & Residual Paperwork.

Permits: All of the permits need to be moved to another contractor, or the homeowner needs to move them to their name. We also called the county and let them know that the contractor had abandoned the job and the contract was terminated.

We found that most contractors would not quote the job mid-project unless the permit was out of the pool company’s name. In Florida, homeowners can pull a permit for the property themselves, but if you did that AND then subsequently moved the permit to another company, all of the filing fees would have to be repaid.

In our case, the pool company eventually sent the county a letter stating that they were no longer working on the job. However, there is a clause that allows the homeowner to remove the contractor from the permit if the contractor refuses to cooperate. In our cause, this seemed like the first time the pool company ever complied with our wishes.

Release of Liens: For every contractor, vendor, or 3rd party associated with our project, we then sent a Release of lien. An example can be found at this link.

Florida Lien Deadlines

Subcontractors have 45 days to give Notice to a homeowner after they 1st provide a specialty material or service that they have a right to place a lien on the property.

They have 90 days after the goods have been delivered or services performed to file a lien, and the homeowner needs to be notified within 15 days of the lien being filed.

The lien must be enforced within one (1) year after it has been filed. Even if the lien is not enforced, it may require additional paperwork to have it removed.

The best website I found was here.

Other Florida Statutes we Found Useful

713.165 – Request for list of subcontractors and suppliers

My Summary: This allows a homeowner to request a list of people who have provided services on the job. If the list is not provided, the main contractor waives their right to a lien for anything they did not provide back to the homeowner. I talked about this earlier and would include that clause on every letter that is sent. The request can be made any time a subcontractor provides a service.

489.126 (1) and (2) – Moneys received by contractors

My Summary: A contractor has 30 days to file for a permit after they have received 10% or more of the money for the project.

Work on the job must start within 90 days after all the permits have been approved.

Contractors must make forward progress within every consecutive 90-day period or be in violation of the statute.

After one of these three times has elapsed, the homeowner can write a notice that gives the contractor 30 days to complete the work or refund the money for the work not performed. If work does not continue or the money is not refunded, the contractor is in violation of the statute. Felony charges start at any amount over $1000.

In our letter, we stated:

Finally, it should be noted that your personal conduct will rise to the level of a crime if <Contractor Name> does not do the following upon receiving this request pursuant to 489.126(1).  That section of the Florida Statutes requires you to timely apply for the necessary permits, to start the work, or to refund the payments made to <Contractor Name> within 30 days of receiving this notice.  If you fail to do so, then you are in breach.  Furthermore, it will be inferred that you’ve committed a crime if you do not obtain the permits, start the work, or refund the payments within 30 days. In addition, if you fail to comply with the statute, then you will have committed a felony.  See § 489.126(2), Fla. Stat. (2021). 

558.004 Notice and opportunity to repair

Homeowners have four (4) years after a problem has been discovered or (10) ten years after the construction has finished to file a claim alleging a construction defect.

Areas of the Contract that Helped

I am not a lawyer. I do not give legal advice.

CONSTRUCTION DOCUMENTS: Here, the contract stated that all plans, blueprints, etc. will be made available to the homeowner and are property of the homeowner.

Why it helped: We were able to ask for design documents from our contractor that should have been provided by the equipment manufacturer. However, the pool builder did not provide those and therefore was in breach of the contract. Specifically, the manufacturer only guarantees the in-floor cleaning system if their engineer approves the plan. We (later) found out that the pool company did not submit our plan and therefore was not installing the equipment properly.

COMPLIANCE WITH LAWS: The contract stated that the contractor must

1. Provide Services in a workmanlike manner
2. Remain in compliance with all local, state, and federal laws

Why it helped:

1. We were able to list any items that were not “workmanlike” as a breach of contract.
2. When the permits expired, the contractor was in violation of local laws and again in breach of the contract.

TERM: Here, the contract stated that the contractor will diligently work to complete the project within approximately 16 weeks of ground breaking, time being of the essence of this contract

Why it helped: We could prove that the contractor did not work diligently as the timeline was completely blown out of the water. This is another breach of contract.

PERMITS: This section stated the contract was responsible for all of the building permits required to finish the job.

Why it helped: At some point, the permits expired AND when a secondary permit was required, they refused to get it. This gave us two new contract breaches to add to the list.

WARRANTY: This was a hidden gem for us. It stated: the contract shall provide its services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in [the] community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to [the contractor] on similar projects.

Why it helped: This gave us at least three breaches of the contract. We called out every instance one of these was not met:

1. Timely and workmanlike were mentioned a 2nd time
2. The Services were to “meet generally acceptable standards” in our area
3. The “Standard of care” was not equal to or superior to other pool builders.

Things Outside of the Contract that Helped

Documenation: We documented everything. For every phone call or in-person conversation, we sent a follow-up email summarizing the conversation and who agreed to what.

At the end of every e-mail that documented decisions that were made, I added a clause similar to “Please let me know within the next seven (7) days if you disagree with anything as documented or it will be considered correctly documented.” The contractor often would reply with “that is correct” or make a minor adjustment or two. This helped document all of the moving targets.

E-mail Summaries: About once every two (2 weeks, we would summarize all of the outstanding action items and send an e-mail for what we considered the high-priority items that needed to be addressed. We did not get a lot of responses on these, but they kept us organized.

Promises: We often got a lot of “next week” promises or “it has been ordered” promises. We simply documented all of those and sent them in a single list that summarized the date, who said it, and what they said. The lists ended up looking like a diary of a kid trying to procrastinate cleaning their room for six months. Sometimes this worked to help keep forward progress, but mostly it documented the breaches in the contract that I already mentioned.

Other Contract Considerations

To reiterate, I am not a lawyer. I do not give legal advice. I am writing these down for personal reasons so I can checklist them next time I get involved in a big construction project.

DISPUTES: After this process, I will never sign a contract that commits to Mediation and Arbitration before court litigation. Specifically, I am against “final and binding arbitration” because it makes everything downstream harder.

FEES: I am also (now) a proponent of including lawyer’ & other fees in the contract for a prevailing party. The cost of entry to litigation is high and often exceeds the original amount of the pool. If, for example, the total amount I am “due” is less than the cost to litigate, then it would deter me from starting the process, even if I know I am right. We may have approached litigation differently if the clause was in the contract.

FORCE MAJEURE: I will take “Force Majeure” clauses more seriously and ask them to be tailored to the situation. For example, if the contract was signed during Covid-19, I want to know what is impacted and what are the possible remedies.

INSPECTION: Our contract stated that

all inspections shall be done at each necessary stage of construction and before further construction can continue.

What I realized later was that if we were in Phase III of a project and found an issue with Phase I work, I would have a harder time getting that remedied because it could be assumed that I approved of the Phase I work when I allowed the construction to continue. It could be argued that I had waived my right to inspect by allowing the construction to continue.

TERM: The term of our contract stated that I, the homeowner, would sign a Notice of Completion within ten (10) days after passing the final inspection, or the contractor could do it on my behalf. This was also a bit tricky, and any of those “punch-list” items that hung around that did not cause the inspection to fail did not have to be formally addressed.

In addition, the payment schedule had all of the money paid to the contractor on or before the final inspection. This left us with little leverage if the project ever reached that point.

PAYMENT: Here is another item that we could have done better. We paid a large up-front deposit, as is normal with these contracts. However, we also agreed to make another payment upon delivery of certain materials. We were concerned that if a tractor-trailer showed up (in the middle of the night), it would essentially require us to make another large payment without any additional work being performed.

Imagine getting pool equipment delivered and then owing 30% of your pool by it just being in your driveway. It would be better for us to pay the same 30% after the equipment is installed. That was not our example, but ours was similar until we renegotiated that portion of the contract.

SCOPE: We went back and forth about five (5) times before we signed the contract to make sure all of the items were in the contract. We even held off on signing the contract until we saw the engineering drawing of the pool.

Why it helped: We always had a true North that we could reference. That said, as we moved through the pool construction, we wished we had documented the items even more clearly than we did.

Things in the Contract that Could have Hurt Us

NOTICE: According to the contract, communication is only valid if it is in person or certified mail, return receipt requested. This means that most of the e-mails were not official communication as it pertains to changes to the contract itself.

WORK SITE: We agreed to keep stakes on the property so that there would be no problems encroaching on the neighbors. We also did not sign the document that gives the contractor the right to access our property from our neighbor’s yard. If we had missed a stake or signed that permission slip, I expect the contractor would not be liable for any property damage done to my neighbor’s yard or other property.

PAYMENT: The contract states that if a homeowner fails to make a payment, then the client is in breach, and the contractor can cancel the contract. This could have hurt us if we refused to pay due to the quality of workmanship or missed a scheduled payment (like delivery of materials). Luckily, we did not run into this sticky situation.

OTHER: A weird item that I did not think about before I signed. “Change order will void initial project timelines.” – While that may be true under normal circumstances, we were concerned that signing a change order let them off the hook for the 16-week “timely” completion. – If I could have modified it and added a phrase that stated something that limited the timeline change to those items in the change order.

Another Change Order issue that we fought with was the contract stated “A new timeline will be given once the Change Order has been paid.” However, the change order itself states “paid AND the materials ordered.” It also had softer language around how the completed timeline. We were able to get a verbal date before signing the change request (but that too was not met).

WORKSITE ACCESS: There were two clauses that caused some additional conversation:

1. Driveways and sidewalks will be kept clear of vehicles during work hours.
2. Contractor will make reasonable efforts to protect driveways, shrubs, lawns, and other vegetation.
3. Homeower will allow areas for storage of materials and debris.

We should have been more specific. Our worse case (hypothetical) scenario was that we moved our cars out of the driveway, and all of the pool materials were stored there. While unloading the materials, the heavy equipment damaged our driveway. Then, due to the timeliness of the project, we could no longer use our driveway for 6+ months all while local HOA continued to fine us for an unbecoming driveway.

If any part of that had happened, it would have made a bad situation worse. “Luckily” for us, most of the disaster has remained in our backyard, behind a fence.

DEFAULT: I mentioned this earlier, but here is another section where the contractor states that failure to pay puts the homeowner in default of the contract. However, there were three other areas that need to be called out:

1. If a lawsuit is filed, the contract is in default.
2. If either party goes bankrupt, the contract is in default.
3. The failure of the client to make the building site available or the failure of [Contractor] to deliver the Services in the time and manner provided for in this Agreement. – This deserves two paragraphs.

1st Site Access: If the client locks a gate or refuses to allow access to the building site, they are in violation of the contract and in default. I AM NOT A LAWYER, NOR GIVE LEGAL ADVISE, but how I read this clause was that I could not lock my gate until I was out of the contract.

2nd Contractor Delivery: In my opinion, this is the most common complaint. “failure to deliver the Services in the time and manner provided in this Agreement” means either a) they are taking too long or b) they are not building with the same quality that a similar pool builder would (in our region). How to proceed when a contractor is taking too long or not performing to standard is totally situational. In our case, My wife and I determined that it was worth walking away.

AMENDMENT: This section stated the agreement can only be changed “In writing, and if the writing is signed by both parties.” This means that when we executed the change order, both the owner and I signed it. We printed two copies, and each kept one. Had I not done that, I expect the “upgrades” that we were promised would have vanished in the wind.

SIGNATORIES: This section specifically called out the owner of the pool company as the only one who could sign the contract on their behalf.

SCOPE: This was a double edge sword. We let the number of characters allowed to be displayed on the engineering drawing truncate the full scope of the work. Meaning instead of saying “80Amp subpanel or higher installed to reconnect existing electric,” the line item stated, “Reconnect existing electric.” This could leave some outstanding questions without researching old e-mails. If I had to do it again, I would make all of the e-mails that lead up to the decision an appendix to the contract for clarity.

Referring to promises from people no longer employed by the company has only caused us grief.

Property Damage Done by the Contractor

If a contractor does real property damage to the job site, I have found there are two options. 1) Work with the contractor directly to resolve the issues or 2) file a claim with the Contractor’s insurance company.

I have always worked with contractors. I have never had to file an insurance claim against a contractor.