Regulations issued by the New Jersey Department of Law and Public Safety make it illegal under the Consumer Fraud Act for a home improvement contractor to fail to begin or complete work on the date or within the time period specified in the contract, or as otherwise represented, unless the delay is for reason of labor stoppage, unavailability of supplies or materials, unavoidable casualties, or any other cause beyond the contractor’s control. Furthermore, any changes in the dates or time periods stated in a written contract must also be agreed to in writing by the customer and the contractor. N.J.A.C.13:45A-16.2(a)(7)(ii).
Even less well known is the regulation which automatically makes it consumer fraud for a home improvement contractor to fail to give timely written notice to the customer of reasons beyond the contractor’s control for any delay in performance, and when the work will begin or be completed. N.J.A.C.13:45A-16.2(a)(7)(iii).
When I tell people this, I always get asked, “Does it have to be a letter or is an email ok?” Well, an email is probably sufficient, although I couldn’t point you to a recorded opinion by the court that covers the issue. It’s more important to touch all the bases: First, write the note and send it in a “timely” fashion. What’s a timely fashion? In my considered opinion, only ahead of time is timely, so if you see you’ll be late getting started or finishing, write and send the explanation. Plan on writing as soon as you learn that there will be, or even that there may be, an unavoidable delay.
Second, make sure you write how the delay has been caused by some factor beyond your control. If the delay is not beyond your control, you’ve goofed (see above) and you need to get a signed written change order in place at your earliest opportunity.
Third, write to the customer when the work will begin or be completed. Give yourself plenty of leeway in setting a new deadline, consistent with not angering the customer, because you don’t want to go through this more than once.
| Dear Mr. and Mrs. Customer,
I will be late finishing your project because I was incarcerated yesterday in the County Jail for thirty days after my conviction for mopery (with intent). I was supposed to finish installing your window treatments by next Friday, the twelfth of the month, but it now looks like I won’t finish until the twelfth of next month. This delay was unexpected and beyond my control since I didn’t know ‘guilty with an explanation’ was no defense. I am sincerely sorry for the inconvenience and this won’t affect your Presidents Day discount. /s/ Joe Contractor P.S. – I tried to work “justice is blinds” into this letter but couldn’t. See you soon. – JC |
Remember, whether or not you write the customer with your reasons for the delay, meaning whether or not you decide to commit consumer fraud, you will still be in breach of contract. Therefore, it’s important to document the change in contract time as a change order, signed by you and the customer. The resulting contract amendment should cure the breach.
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South Jersey construction attorney Robert J. Incollingo is a Director of the Remodelers Council of the Builders League of South Jersey, and practices construction law, business law, and real estate law in Gloucester County, Burlington County, and Camden County, New Jersey from his office in Cherry Hill.
