Throughout the course of a project, your client requests and pays for several change orders, although you never get around to putting anything in writing. In one final request, you’re asked to build a tiki hut in the backyard. On the basis of the client’s agreement to your price, also undocumented, you do the work. But when you present the client with your final invoice, you find out that he didn’t clear construction of the tiki hut with his wife and she’s refusing to pay anything extra. Worse, she’s a lawyer and has read your contract, which clearly states that all change orders must be in writing to be valid. Can you still get paid?
Depending on the jurisdiction you’re in, the answer may be yes. Courts have found that, even where contracts specifically state the written-change-order requirement could not be waived, parties can waive the provision by prior course of conduct such as these clients displayed—requesting and then paying for several undocumented change orders during the project.
Additionally, some courts have found that written change orders are not needed when change-order work on a private project is required for proper functioning of the project. (When the owner is a public entity, however, the law is not as forgiving and the court generally finds undocumented change orders invalid.)
Best practice is to put change orders in writing and to get them signed by the owner. But if for some reason you don’t, the waiver agreement may apply.
Alexander Barthet (alex@barthet.com) is a principal of The Barthet Firm, a 12-lawyer commercial law practice focusing on construction-related matters. This article is for informational purposes only. It is not intended as legal advice. Consult an attorney before taking any action.
