As a general contractor, you spend more time putting out fires than pretty much anything else.
It’s not a problem – most general contractors are natural problem-solvers and improvisers by nature, so we’re not shy when it comes to overcoming obstacles, even when those problems are people.
Dealing with subcontractors, haggling with suppliers, overseeing administrative teams, and interfacing with stakeholders – general contractors are constantly dealing with the expectations and demands of various groups of people, all with drastically different needs.
Usually, gen cons can handle these problems, as we’re the captains of the ship, and everyone answers to us. But what about those exceedingly rare situations where the client is the problem?
What do you do, as a general contractor, when the client themselves is causing you problems?
As a GC, you often have to solve problems with people by cutting ties with them and getting them away from the job site. But what can you do about an overreaching owner? Or worse, an owner who is putting your team in danger?
In some cases, you simply cannot do anything but ban the owner’s access to their own property while you do the things you need to do as a general contractor. Let’s learn more about this unique situation.
General Contractors and Owner Access: The Big Picture
To be entirely honest, understanding the legal intricacies of owner-contractor rights is a nigh-impossible task for construction professionals. After all, we’re here to build things – you wouldn’t hire a lawyer to install a toilet!
We could talk until we’re blue in the face about who has access to what and when, but the stark reality is that what’s legal in one place could be illegal in another across the giant geography that is the United States.
Instead of trying to get granular, we’re going to cover some of the main legal areas of importance governing owner access – and the rights of general contractors when it comes to denying access to owners. These legal goalposts serve as the federal frameworks around which localities and states build their own rules and regulations.
- Implied Obligation of Access: On the client side, there is an inherent obligation for property owners to provide contractors with adequate access to the construction site. This access is necessary for contractors to perform their work under the contract. The level of access required depends on the nature of the work, and as its name suggests, is implied in the contract, not expressly written.
- Example: A simple example of this is for a residential building where the owner must allow the contractor to access the entire site for excavation and foundation work.
- Owner’s Responsibility: Property owners must not only provide access but also ensure it is unobstructed for contractors. Any limitations on the contractor’s access must be explicitly stated in the contract. If an owner restricts access without a contractual basis, they risk breaching their obligations and may become liable for additional costs or losses incurred by the contractor.
- Example: A property owner restricts site access due to financial issues on the client side, but fails to specify this in the contract. This could result in the general contractor suing the property owner for losses.
- Contractor’s Right To Work Without Interference: Contractors have the right to carry out work without interference from the property owner. This right is fundamental to construction contracts, and courts have shown a willingness to provide remedies for losses resulting from infringements of these rights.
- Example: A contractor may file a lawsuit against a property owner for repeatedly interrupting the work schedule, which infringes on the contractor’s right to work without interference.
- Risk Allocation in Contracts: Construction contracts typically include provisions for risk distribution. These provisions aim to balance the responsibilities and liabilities between the owner and the contractor, so both parties can move forward in good faith. While specific clauses may attempt to shift responsibilities, the law generally imposes implied warranties and duties on both parties.
- Example: A contract outlining a high-rise commercial project might have 20-30 pages of risk allocation documents, specifically detailing the amount and type of risk allocated to both client and contractor. These documents can contain scenarios as wild as blizzard and tornado damage.
- Cooperation and Non-Interference: Both the owner and the contractor are generally understood to have an implied duty to cooperate and not to impede or interfere with each other’s work. This mutual obligation is crucial for the successful completion of the project, though its application often depends on the individuals involved.
- Example: A common issue here is a failure on the client’s end to handle certain things like permits or materials. In many residential situations, it’s on the homeowner or landowner to get the necessary building permits.
When Can A General Contractor Close A Site To The Owner?
There are very few situations where general contractors can close access to the landowner, and even then, it is because they are being ordered to close the site as per regulations or regulatory bodies themselves.
The situations where you are allowed to close access to an owner as a general contractor are the extreme situations you would expect – issues with health and safety, explicit contractual orders, or legal compulsion either by law or law enforcement.
General Contractors Can Close Access To Owners If:
- Safety Concerns: If there are imminent safety risks on the site, contractors can restrict access to ensure safety protocols are followed.
- Contractual Provisions: If the contract explicitly allows the contractor to control site access during certain project phases.
- Legal Orders: In cases where a legal authority or court order restricts access due to external factors like public safety or legal disputes.
General Contractors Cannot Close Access If:
- No Contractual Basis: If the contract does not explicitly give the contractor the authority to restrict access, they cannot restrict access.
- Owner’s Legal Rights: When the owner has legal rights to access the site for inspections, monitoring progress, or other purposes outlined in the law or contract.
- Pretty Much Every Situation: If you are considering any restriction that is not based on safety, legal, or contractual reasons – assume you cannot restrict an owner’s access.
The answer to the question: “When can a general contractor close access to the owner?” is rather simple – you usually can’t.
Owners are owners for a reason. It’s their property, so it makes no sense that a contractor would be able to refuse access to them.
Except for rare circumstances – or if it’s outlined in the contract – general contractors should act with the assumption that they cannot prevent owners from accessing their site. The only time you can really prevent an owner from accessing their property is in extreme circumstances – health and safety issues or situations where law enforcement is forcing you to shut the site down.