It happens far too often – you show up at a job site that ends up much different than what you anticipated.  What is your best course of action?  First, look at your contract.  Do you have a differing site conditions or changed conditions clause?  Absent such a clause, you may be required to assume any additional difficulty, burden, or expense.  However, even in the absence of such a clause, you may have recourse for the additional expense in completing your contracted work.

If you were affirmatively told something about the site that turned out to be untrue, you may have a claim for fraudulent or negligent misrepresentation.  If the site plans do not adequately depict the actual site conditions, you may have a claim for breach of implied warranty.  You may ultimately have recourse to not perform under the contract if to perform would be impossible or commercially impractical.  However, be warned, determining how extreme the differing condition is will be essential in deciding whether you will be able to recoup your extra expense in completing the project.  This process also leads to increased litigation costs and delay in securing your earned additional fee.

Instead, protect yourself by including a differing site conditions clause within your contract.  This clause is designed to create a claim when unforeseen conditions arise and addresses which party pays the costs.  The clause should also have a procedure to resolve any disputes.  Ultimately, this clause promises a contractor an adjustment to the contract price when unforeseen circumstances arise.  You should still be prepared to show how the conditions are materially different from those indicated or ordinarily encountered; however, a well-drafted differing site conditions clause could ultimately save you headache and expenses in the long run.

You should contact an experienced construction attorney to assist with the drafting of your differing site conditions clause to maximize the benefits and minimize your risk.

By, Andrew Wilkinson