Normally, when a contractor's performance under a construction contract is delayed, the owner may seek damages arising from such delay. However, if the owner has waived the agreed-upon completion date, he may not later seek damages based on the contractor's failure to complete performance on such date. To determine whether a waiver has occurred, courts will examine all the surrounding circumstances, including the actions and inaction of the owner.
After a construction contract has been entered into, but prior to the time for performance thereunder, a party may positively declare his intention not to fulfill his contractual obligations. This "anticipatory breach" can occur either through the party's express declaration or it can be implied through the party's conduct. If anticipatory breach occurs by implication, the breaching party's conduct must be unequivocal in the intention not to perform.
As with all risks that are inherent to a construction project, the risks of a privatized construction project, that is, a public project that is built and financed with private funds, are usually allocated among the parties who are involved in the project. The three ways of allocating the risks are avoiding or reducing the risks, assuming or retaining the risks, or transferring or sharing the risks.
A significant issue for homeowners and contractors alike is whether a construction defect is patent or latent. Which category the defect falls into will determine the time within which an action must be brought on the defect. Generally, this means a difference in years with latent defects enjoying a longer limitations period.
An owner who is involved in a construction project has certain rights under his or her contract with a contractor. One of the owner's rights in a construction project is the right to stop work on the construction project. This right is similar to the owner's right to terminate the contract for breach of contract by the contractor.
Ski and Recreation Law
