In counseling home improvement contractors on the form and content of their contracts, I have developed a Top Ten Contract Drafting Tips List. Although you cannot draft the perfect contract to prevent a lawsuit, these tips are useful to help minimize the risk of litigation and the potential exposure your business may face. The sixth tip in this continuing series is to identify the future pool owner's responsibilities before, during, and after construction.
Swimming pools are installed in phases: 1) designation of pool location; 2) pool area preparation; 3) excavation; 4) plumbing; 5) electrical; and 6) installation of the shell, liner, equipment, tile, and coping. Some customers will contract with the swimming pool professional for the installation of water features, hardscaping and landscaping. As a result, the pool owner is generally responsible for certain components of the work during each phase.
Swimming pool installation, renovation and service and maintenance contracts must list the customer's responsibilities. These responsibilities often include: preparing the site for excavation (remove trees, stumps etc.); approving the location of the pool and equipment; obtaining permits and the certificate of occupancy; filling the pool with water; and maintaining the pool finish. Service and maintenance contracts should outline how the pool owner is to care for the swimming pool (when and what type of chemicals should be added between cleanings).
Certain customer responsibilities must be satisfied before construction can begin: site plan approval, permits, site preparation, etc. When a customer fails to satisfy one of these obligations, you should be entitled to cancel the contract and retain any deposit money to cover expenditures. To protect your business, your contract should contain a provision that allows you to do just that.
When drafting provisions that inform customers of their contractual obligations, Tip #1 of this series should be followed: draft clear, concise and conspicuous provisions. Customers should know which obligations are theirs before construction begins to avoid any confusion or delays during construction.