Yes, I know. You’ve been there- done that. A late night water damage loss in an rental or condo unit where the responsibility is “cloudy” and everyone SAYS “Just do it- we’ll take care of it.” So you “git ‘er done” and you are a HERO!
Of course, that is UNTIL it comes time to pay the bill! Now the renter, the property manager and the insurance adjuster(s) are all saying, “Not me!” So some weeks back we published an answer to the question “How can I avoid getting hung out to dry in emergency disaster restorations?” Or better said, “Are ‘oral’ over-the-phone contracts enforcable?” Attorney Harvey Cohen’s (who specializes in restoration issues) response was “sort of” as in…
“Get it in writing from the start!That said, generally, oral contracts are enforceable, but there are limitations. There are several issues to look out for that can affect whether you get paid in this case.
The first question is if you have a valid contract. Whether written or oral, contracts have certain basic elements that must exist in order to be valid and therefore enforceable in a court of law. There must be 1) an offer and acceptance, 2) consideration (which is a bargained-for exchange of something of value between both parties), 3) key terms regarding price, payment and the time of performance and finally 4) mutual consent or a “meeting of the minds” as to the terms of the contract… (Click HERE to read more from Mr. Cohen’s legal opinion.)
OK, so we are all in agreement that a legally approved, written and signed contract authorizing services to begin with clearly spelled out responsibilities is the “Gold Standard” for a water loss. But real life tells us sometimes this just isn’t going to happen! Off site property managers or owners, long distance phone calls and a panicked late night emergencies don’t lend themselves to legally written and signed contracts. So then your SFS team came us with an imaginative solution to run by Mr. Cohen:
From a practical standpoint (given it was late at night) could our W/D contractor have texted or emailed an authorization form to the Property Manager and if he or she had returned it before the contractor started work with a “yes” would this be considered a valid “written contract”?
“The answer to your question is YES – an email authorization in response to the contract being emailed to a property manager or owner is the equivalent of forming a written agreement. However, nothing is as good as having a signed contract in hand, so it’s best and safest just to get it signed. Just as a little explanation, even if he or she emails consent to start the job, the property manager may be able to say there was a problem with the contract attachment to the email, or that he couldn’t read the actual contract, and then you’re still left with a blank unsigned contract.”
So there you have it, campers. Always go for “clearly defined expectations” with a signed, WRITTEN contract in hand before you start emergency mitigation services. But if that simply won’t fly then an emailed approval to begin emergency services with a clearly written acceptance of payment responsibility is a whole lot better than nothing! Steve
After graduating from Stetson, Harvey was employed by the State Attorney’s Office. Mr. Cohen is licensed to practice in Federal and State court. Mr. Cohen began as a solo practitioner and is now the managing partner of over a dozen attorneys and co-council staff. Cohen Battisti Attorneys at Law are great supporters of the Leukemia Lymphoma Society.
Mr. Cohen frequently gives informative seminars to restoration professionals throughout various locations in Florida and the nation. These seminars include: Contractor’s legal rights, Assignment of Insurance Benefits, the Attorney Fee Shifting Statute, Contract Drafting and more.
His firm has handled thousands of insurance claims. Cohen Battisti has represented the restoration industry and has recovered hundreds of thousands of dollars for their clients and the insurance industry has paid for their attorneys fees. To contact Cohen Battisti attorneys please call (407) 478-4878 or visit our website at www.CohenBattisti.com