DOES YOUR CONTRACT PROTECT YOU

From the Worst that Could Happen?

by Joelle Steele

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A landscaper once purchased four contracts from me and then called with a number of questions about contracts in general, and about mine in particular. As a result, I revised my contract FAQs on my Web site to address some of the issues he raised. But one of his questions was about customizing the parts of the contracts that pertain to specific jobs — the services provided, the services not included, and all the "what ifs" that could occur. He wanted to know what he should include about each specific project he does. Tough question.

Most contracts, including mine, are built around anticipating what could possibly go wrong and then using language to nip it in the bud before it does. For example, I have included the most common exclusions and limitations clauses in my landscape contracts, such as ones for excavation and non-payment. But every project is a little different. The contractor must accept the responsibility to do his/her own part in analyzing each potential project and ask, "What is the worst that could happen here?" Then, that contractor must compile a list of as many worst case scenarios as possible for each project. Those should then be written up and included in the contract for that project.

Here is an example of areal contractual dispute that illustrates the need for contracts and for those contracts to contain very thorough language to cover everything that could possibly go wrong:

Interior Landscaper v. Condo HOA: An interior landscaper had maintained a verylarge atrium at a condo complex for one year, starting three months after the installation of the plants and planters by others. The plants were now dying. The HOA was demanding that 80% of the plants be replaced free — a wholesale plant cost of about $48,000 plus labor. The plants were over- and under-watered, and that's generally a service-related problem that would warrant free replacements.

The interior landscaper's contract guaranteed free replacement for any plant that died while in the interior landscaper's care, but it did not dictate the conditions for such replacements. The building's architect and landscape contractor had designed and installed the atrium and neither could be located. The interior landscaper finally excavated two large planters in an effort to find out what was wrong. They discovered that the planters had been built with no drainage whatsoever. This was fortunate for the interior landscaper because they were immediately off the hook for the free replacements; the responsibility was on the missing architect and landscape contractor.

As a result, the HOA immediately dropped the matter. If the planters had been properly built with drainage, it would have been very expensive for the interior landscaper to replace the plants. That's why plant maintenance contracts should always include language that limits the conditions for free replacements, especially for projects designed and installed by others.

It pays to be think of the worst case scenario and prepare your contracts accordingly. Leave no stone unturned, anticipate the worst, and be protected in case it happens.