Legal Question in Construction Law in California

Can a contactor request final payment in a contract before work is complete if the re-define complete in a contract?

Asked on 5/25/11, 1:29 pm

3 Answers from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

The phrase "before work is complete if the re-define complete in a contract" makes no sense. You need to clarify your situation and your question before it can be answered.

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Answered on 5/25/11, 2:44 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I think you are asking if a contract for construction can redefine the term "complete" to mean something different than the standard construction-industry definition of "complete," which probably usually means something like "substantially complete, and ready for owner inspection and issuance of the 'punch list'" or "awaiting certificate of occupancy" or "ready for final inspection" or the date a Civil Code section 3093 Notice of Completion is dated, or recorded. Look at Code of Civil Procedure section 337.15, subsection (g) for other possible definitions.

Since there are so many possible definitions, I would think the parties to a negotiated contract could agree, within reason, to redefine "completion" for purposes of the contract.

A redefinition might not be lawful and would not be upheld by a court if the parties did not reach mutual agreement on it, if the term is defined in an applicable statute, or if the redefinition was fraudulent or unconscionable.

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Answered on 5/26/11, 1:26 pm
Bruce Beal Beal Business Law

Most construction contracts define completion as "substantial completion" referred to by the above attorney. However, most construction contracts also provide for a holdback of 10%, which would be paid after the "punch list" items are performed, and any as-built drawings, spare parts, and warranties are provided as required by the contract. Without seeing your particular contract, I can say no more.

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Answered on 6/09/11, 3:58 pm

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