Warranties and Guarantees for Landscape Projects
Some contractors are only too keen to offer a warranty or guarantee to their clients, using the perceived benefit as part of their sales and promotional campaigns.
‘All works guaranteed for one year/two years against faulty workmanship and material defects’
‘Materials and labour warranty valid for twelve months from completion’
‘We are proud to offer a guarantee against faulty workmanship for one year’
Many customers have not considered requesting any form of guarantee, expecting any defective works to be remediated with or without the warranty offer, whilst others will take advantage of the offer, especially if it is considered to be a free extra offered over and above the project price.
Some warranties are printed to look like diplomas or the type of document you may expect to find in a new electrical appliance, with fancy borders and lettering, designed to look ‘authentic’ and offer perceived value – even if the wording is vague and ambiguous.
As a dispute expert witness, I see many different types of warranty document, provided to me as part of my site survey, along with other papers including copies of the quotation, invoices etc. Part of my role is to establish if the ‘promised’ has been delivered. In other words, has the work been carried out in accordance with the contract.
Any warranty or guarantee document is not considered by myself as being germane to the project, and it has no bearing on my evaluation whatsoever. Contractually, it may be considered superfluous and irrelevant. This is not to say that a Court will not take it into consideration, provided that the customer affirms that the main reason they chose to commission a particular company was on the strength of that warranty. In many cases, warranties add little beyond statutory rights; however, where expressly incorporated into the contract or relied upon by the consumer, they may become legally enforceable.
In such cases, the wording of the warranty becomes very important. As the majority I have seen appear only to contain empty and meaningless phrases, that are wide open to interpretation, they may be deemed of little or no value beyond the obvious ‘sales pitch’ promotional element. A phrase I have often heard is ‘not worth the paper it is written on’.
However, a Court may well take the view that, irrespective of the actual wording, the inference or perceived – express or implied – will serve only to ensure the Judge takes a closer look at the actual work as carried out by the contractor. Was the warranty provided as a meaningful document or merely a sales aid? Was the warranty intended to be a serious offer or not?
Never forget though, that any warranty provided by a contractor is superfluous and secondary to the Legal Acts that pertain to landscaping projects. These are The Consumer’s Protection Act 1987 and The Consumer’s Rights Act 2015. The primary Act used in case of dispute is the 2015 Rights Act, which provides the consumer with a period of six years from completion of a project to raise a complaint against the contractor. (Five years in Scotland in some cases)
The Consumers Protection Act of 1987 is intended to hold manufacturers accountable for producing unsafe goods. It allows consumers to claim compensation if the defective products cause injury, damage to property or death. Claims are brought against the product’s producer. This could include (for example) a pergola that collapsed, or a fence that was incorrectly constructed causing injury or damage (for example) a patio window or neighbouring car). The Consumers Protection Act primarily concerns liability for unsafe products causing injury, rather than general workmanship or quality disputes.
Misleading warranties may breach the Consumers Rights Act 2015, or the Consumers Protection from Unfair Trading Regulations 2008.
Any problems with the ingredients of a ‘product’ e.g. paving or timber purchased by the installing contractor may only be remediated by the contractor from the supplier. In turn, the supplier must take up any problems with the products they sold to the contractor with the manufacturers from which they purchased those products. In general terms, the installers customer has no redress with the supplier or manufacturer unless they purchased materials direct, in which case they remain the customer. However, in most contractual disputes, the consumers claim lies against the contractor, although limited direct rights against a manufacturer may exist in specific cases.
If that all sounds rather confusing, it is quite straightforward. Any remediation for defective materials is between the person/firm who bought them with the person/firm they brought them from.
Once a complaint has been registered however, the period of responsibility continues, so a claim can go on for years thereafter until resolved. With or without a written warranty or guarantee, the customer will have recourse for up to six years to file a claim under one of the two Acts.
Planting projects often have a fairly limited duration – usually one full year after planting. This may be limited in scope to replacing dead or dying plants, although such warranties are often subject to careful maintenance care by the customer. It is standard in such schemes to allow an additional percentage on the price of a project, and I suggest the level is set at the possible value of any losses, especially if large trees or shrubs are involved, which may require installing into awkward places amongst other plants. Assess and evaluate your potential costs/losses when offering a planting warranty.
Another type of warranty is a guarantee that comes with a product – especially electrical equipment such as a pond pump or fountain. Be aware that the liability/warranty period is often only one month if purchased by a contractor, as the manufacturer will anticipate far greater use by a professional than a domestic user. If you suggest to the customer that they may like to purchase items that fall within that category, they will gain the benefit of a much longer (usually twelve months) period under warranty. (If you purchase the item on their behalf, and the warranty period is reduced, the client will still expect a full twelve months guarantee from you as their supplier!)
Top 10 Complaints
1. Cracked joints in paving projects
2. Loose paving
3. Stained timberwork (especially horizontal cladding)
4. Stained paving (picture framing, reflective staining etc)
5. Efflorescence (especially brickwork)
6. Rotten/split/warped timber (pergolas, fencing etc)
7. Artificial grass installations – various issues.
8. Decking (warping/discoloration/loose boards)
9. Ground movement/heave/contraction
10. Tree root disruption affecting walls, driveways and paving’
Complaints against contractors can often involve more than one company. I currently have one dispute case involving a) the contractor, b) the designer, c) the supplier and d) the manufacturer. Plus of course, the customer.
You can only imagine how complicated, complex and convoluted such cases can become, with each party implicating the other/s.
How to Mitigate Problems Involving Warranties – Express or Legislated?
First of all – if you are a designer or designer and build company, ensure that you hold Indemnity insurance cover – and crucially, even if you retire, maintain that cover for six years thereafter in case of a claim. You will be covered if you hold such insurance for that period. You will not if you let it lapse even temporarily, and you cannot obtain retrospective cover.
Once a project has been completed, and the team have moved on, it is all too easy to ignore previous jobs and concentrate on current and future works.
I suggest that you offer a series of ‘aftercare’ instructions to clients on handover/completion. These include providing them with a Hard Landscape Materials Aftercare booklet, which clearly explains what to expect by way of changes in colour and appearance of products once they have been exposed to the elements, ensuring that you make written mention of this document in your final invoice.
There are many materials that will require ongoing maintenance, mainly timber, including fencing, pergolas, woven hazel/willow fencing, paving (including porcelain, which is not maintenance free, despite any advertising features the customer may have read).
All of the potentially problematic products should be listed, together with recommended periods of maintenance. For example, annual washing of paving, applying preservative to timber (nominate products e.g. linseed oil etc) checking fixings on decking projects every three years and any number of different permutations for different materials and products. Think about any likely/possible problem and compile a list, including their location within the scheme.
Supply the customer with a Maintenance Schedule including works to be carried out and their intervals.
IN THE EVENT OF A CLAIM WITHIN THAT SIX YEAR PERIOD, THE CUSTOMER WILL HAVE A GREATLY WEAKENED CASE UNLESS THEY CAN PROVIDE EVIDENCE THAT THEY HAVE COMPLIED WITH YOUR AFTERCARE INSTRUCTIONS, including dates and photographic evidence including products utilised.
Summary
LEGAL STATUS OF WARRANTIES AND GUARANTEES
1. Any warranty or guarantee provided by a contractor is secondary to statutory consumer rights. A warranty does not replace the contractor’s legal obligations.
2. Where a warranty is expressly incorporated into the contract referred to in the quotation, or relied upon by the consumer when deciding to appoint the contactor, it may become a legally enforceable contractual term. In such cases, the wording of the warranty can be relevant to a Court.
3. However, many warranties encountered in practice are vaguely worded, promotional in nature, and add little beyond existing statutory protections. In those circumstances, they may carry limited legal weight, although they can still influence how closely a Court scrutinises the quality of the works carried out.
STATUTORY CONSUMER PROTECTION
4. The principle legislation governing landscaping projects supplied to consumers is the Consumers Rights Act 2015. Under the Act, services must be carried out with reasonable care and skill, using materials that are of satisfactory quality and fit for their intended purpose, and supplied within a reasonable time (where no completion date is agreed). These rights apply regardless of whether a written guarantee or warranty is provided.
LIMITATION PERIODS FOR ENGLAND & WALES
5. In England and Wales, most claims for defective landscaping works are subject to a six year limitation period under The Limitation Act 1980. This period usually runs from the date of practical completion of the works.
6. Registering a complaint, or entering into correspondence does not pause or extend the limitation period. To preserve legal rights, formal legal action must be commenced within the applicable time limit.
IF IN ANY DOUBT, CONTACT A SOLICITOR SPECIALISING IN PROPERTY DISPUTE ISSUES FOR ADVICE.
