Friction in landscape contracts

Question

When two agents get together to discuss work that needs to be done in a landscape, inevitably each has a more or less different idea of what the final result will be. When there is a big discrepancy between these ideas there is likely to be friction. It is in the interests of both parties to minimize the difference, but that all involves work which adds to the expense and there is a temptation to enter into informal less detailed agreements.

It could be that "landscaping" is a category of business that is vaguely defined and presents special problems. If I ask a builder to build me a garage on my property he comes and constructs a wonderful building but walks away leaving a complete mess with piles of this soil here and there and sand exposed from the foundation and great swaths of bare soil. The builder calls and asks for the payment, I refuse, the builder says "that's landscaping", the garage is removed and the mess remains. The work was performed as requested and I was in the wrong.

With the garage in place I ask an electrician to lay an underground cable from the house to the garage. A digger (backhoe) is used to create a trench, the cable is laid, it works perfectly, the electrician calls for his check, I refuse since there is a great mound of soil over the trench and it looks ugly, he says "that's landscaping", pulls up the cable and the mess remains.

Are the expectations different when dealing with "landscapers"? How can we minimize the difference in understanding when one agent has a clear vision of the effects of work and the other may not? I don't think there is a clear answer to this question so don't answer if you are looking for 15 points, but do answer if you have experience and light to cast on this situation. I have ideas of my own but will delay on that.

Answer 1

In dealing with any contractor, at least in the US, you must always assume that "if it's not in the contract/quote, then it WILL NOT be done". The non-landscape contractors I've dealt with over the years have included-sometimes at my insistence-a clause stating approximately "clean-up of all debris" as the last item in the list of things to be done. I haven't had any projects like those you've used as examples, but because of my own skills I probably would not have included a "landscape to be replaced to what it was before work was completed" clause either - just get rid of the debris and leave the rest to me.

And do you really want non-landscapers to try their luck with landscaping on your property?

In my area, we have a ton of "guys with truck and skidsteer" who think they're landscapers but really have no clue as to what they're doing or why they're doing it. I saw one such "professional" destroy the tilth of a yard - and consequently its drainage - by repeatedly, over several days, reshape a slightly sloped yard immediately AFTER a 3" rainfall and then DURING another inch of rain. It was a quagmire. After the next hard rain, police were called because the downslope house was flooded due to this idiot's love-affair with his skidsteer and complete uncaring ignorance of soils, slopes, or basic landscaping practices.

I'd rather not have these yahoos anywhere near my house.

The only landscaping contractors I've ever used were for a paving job and for tree pruning/removal. In those cases, the paving contract stated exactly what the contractor would do and included the "cleanup" clause (inserted by the contractor, not by me). The tree contractor had a more informal agreement, but we had talked about what should be chipped, what left for firewood, and what should be hauled away and he did exactly what we had agreed.

As with most human endeavors, communication is key. "Get it in writing" is always a good idea.

Answer 2

Not sure you're looking at this properly. Compare what you've said with what you'd expect a builder to do in your house. Let's say you're having a wall removed, damage made good, and various other works. You'd no more expect the builder to do a great job with all the works, but leave the rubble in the corner of the room, or dumped/spread about outside, and say 'job done' and walk away than you would fly to the moon. In the UK, the final payment is never made till after snagging is complete, and that is usually a week or three after the job has been completed (to everyone's satisfaction). The same applies outdoors; if you carry out works outdoors, then dealing with the spoil in a sensible and consensual manner IS part of the work. Part of the costs in the quotation should be for removal and disposal of excess materials, as well as making good and leaving it tidy.

I imagine you're thinking of the recent question on clay being spread across a garden by the landscaper; in that case, he should have discussed what he was intending to do with the person who commissioned the work. Of course, that doesn't mean that what he says he wants to do is necessarily the right thing to do, but I've never come across a reputable landscaper who'd do such a thing, in my experience, it's builders masquerading as landscapers who might. Their grasp of plants and soil is usually miniscule or even non existent, for their skills lie in construction, not horticulture. Builders are also much more likely to 'bury the evidence', meaning rubble and rubbish is buried in a hole on the property rather than being disposed of properly, even if removal and disposal is included in the original quotation.

The electrical work example you give is different - having a main cable laid/replaced, or utility supply replaced usually does leave evidence behind in the form of perhaps a sunken area or a raised area. If its soil, it should be raised to allow for settlement anyway. The people who carry out those type of works are not landscapers and not even pretending to be. Usually there is some work the owner needs to do after they have left, although a major mess in the form of a mountain of soil or spoil is also not acceptable. Equally, a fencing company is very likely to cause some damage to plants nearby, and will dig holes for new posts with impunity and complete disregard for any roots in the soil; they are there to remove and replace a fence, but there is still an expectation they will remove any excess materials and leave the area tidy.

It's possible expectations may differ according to area or country; if it is not standard for a builder or landscaper to clear up properly after themselves, then that needs to be discussed beforehand and mentioned in the quotation for the works.

Answer 3

I have too many years experience in construction project management and contract management, so I feel well qualified to answer.

Firstly, every country has its own set of laws. Most “western” and “first world” countries are essentially and originally based upon the legal system of the United Kingdom. It’s important to recognise however that the legal systems of each country differ.

That written, most countries effect a “Common Law” or “Natural Law” that essentially and simplistically provides a mechanism to support the manner in which that country expects its citizens to behave. For example, in Australia we inherited from the UK tort law “Duty of Care” - an obligation to ensure the safety or well-being of others.

As far as I am aware, countries that inherit from the UK legal system also inherit “Contract Law”.

This article by Julie Clarke titled “Overview of Australian contract law” is one of the best I’ve read, in that it is written in a straightforward style that is relatively easy to understand.

If I attempt to condense that further and at risk of criticism, every agreement that we make with another individual or “business” entity (company as such) is a contract.

Even a verbal agreement can be considered a contract, if and when the tests are met. With reference to the above article, the tests are...

“...agreement (comprising an offer and acceptance), consideration, intention to create legal relations, compliance with any legal formalities and that the parties have the legal capacity to contract.”

We place these agreements in writing because, when problems arise, verbal agreements are very difficult - perhaps impossible - to negotiate in a court of law when the evidence is only verbal - it literally becomes a matter of “he said she said...”

Which leads me to the final point, being the legal principle of caveat emptor, or in English, let the buyer beware!

So to answer your question...

1. Make your specific requirements and intentions known to the contractor - this is your specification;
2. Ask for a written quotation that includes a detailed scope of work and an estimate of costs based on your specification;
3. If the contractor refuses to provide a written quotation, send back to the contractor in writing a detailed scope of work and details of any other discussions you may have had with the contractor, including any estimates of cost or quotation;
4. If they still agree to work with you, they are more likely honest and possibly amused with your attention to detail, rather than threatened by it;
5. ensure that you obtain from the contractor some form of agreement to the detailed scope of work and an estimate of costs (this can be as simple as asking them to sign and date a document you hand write, listing your specification);
6. ensure that you provide to the contractor an authority to commence work on your behalf - only in writing.

Finally and importantly...

7. In your specification, use words to describe the condition of your project as you’d like to see it when the contractor has completed their work, such as “on completion of your works, make good any damaged property including landscaping” and “remove all construction waste (trash) from site” and “remove any surplus spoil from excavation work”. You may pay more, but you’ll also receive the finished product you want.

Any questions please feel free to ask in comments and I’ll update my answer.

Answer 4

In 1625 Sir Francis Bacon wrote an essay "On Gardens" in which he states "... when Ages grow to Civility and Elegancie, Men come to Build Stately, sooner then to Garden Finely: As if Gardening were the Greater Perfection." Bacon's essay goes on to suggest what to plant according to the seasons, and how to arrange your garden resources to profit from and mitigate the effects of seasonality. It recognizes that the landscape is dynamic. The building trades are largely an effort to exclude the dynamics of the outside world and reduce things to static considerations.

Written 400 or so years ago it may or may not still apply: thatched cottages that used to be works of art turn to mindless rows of terrace houses, all the same, and modern greenhouse vegetable production might be a triumph of building, while today's highway construction could be a wonder of landscaping. So the distinction is not as clear as it might have been.

Can we as gardeners learn anything from the building and other trades when it comes to projecting the result of our labours into the minds of our customers? Modern house builders often produce videos of a sample showroom house - "this is what your house will look like when finished." It is the same for the landscaper-builder who builds an entire garden from scratch, but is a bit different for a landscaper in a repair context - "this is what your landscape might look like, but it all depends on what we find when we look at what is under the ground, and the climate may work against us." So the ideal video may not work since it promises too much.

Repair landscapers are more in the situation of a mechanic. The car is making strange noises so we visit the garage, and we are told that it might be this and might be that, but it all depends what they find when they take the car apart. They promise to use their best skills, but each case is likely to be a voyage into the unknown. And the customer doesn't like the uncertainty.

At this point the comparison falls apart - the mechanic has to stop and communicate back to the customer to get permission to proceed, but a landscaper knows that he can continue in the knowledge that the landscape will take over and repair any minor, or even major, discrepancies. This might take a long time, but eventually the seasons and natural processes will restore an equilibrium without human intervention.

Maybe by default landscape contracts need to explicitly recognize two parts: the build part and the landscape tidy up. Problems arise when these two parts are compressed together and the latter is given insufficient consideration. Both parts may be completed by the same contractor, but not necessarily, and it may help the owner to state what the end of the build phase should look like and communicate this to the second contractor.