A construction contract serves many purposes, but the overarching goal is to allocate the risks that come with the project between all involved parties. In many cases, these contracts will include provisions about the need to provide notice for various events that could have a negative impact on the project. These events can include issues involving site conditions or a shortage of materials.
What is adequate notice?
In order for a notice requirement to withstand a legal challenge, the court must deem the period of time for the notice as adequate. The right amount of notice will vary for the project. In some situations, relatively short notice is appropriate. In others it may not be feasible. As a result, this often requires a case-by-case analysis.
Will the court ever excuse a failure to give proper notice?
It is not uncommon for construction disputes about notice requirements to result in litigation. Past cases show us that there are generally three instances when courts will excuse a lack of notice. This includes:
- Knowledge. The court may excuse the notice requirement if a contractor or owner had knowledge about what was going on, making notice unnecessary.
- No other options. The court has also excused previous cases when it determined notice was useless because no alternative was available to avoid the problem.
- Difficulty with the owner. Previous cases have also held that courts will excuse the notice requirement when the owner makes it impossible for the contractor to give notice.
It is important to note that if the owner can show the failure of the contractor to give the owner notice removed the owner’s ability to make changes that could have reduced the added cost, the court will likely deny the contractor’s attempt to excuse the lack of notice.