Are Cosmetic Defects Enough to Terminate a Contractor for Default?

One court case ruling supported an owner after the owner claimed the quality of work led to termination for contractor default

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Originally published by Matthew DeVries on Best Practices Construction Law blog.

The event that supports the claim for default or termination or breach of contract must be a material one or one that goes to the heart of the contract matter. Sometimes, the question comes down to whether an aesthetic or cosmetic defect constitutes a proper ground for termination. 

In the case of Brenner v. Zaleski, the court upheld the owners’ decision to terminate the contractor for default for, among other reasons, the existence of numerous cosmetic defects. The appellate court ruled that “[t]here is no obligation on the part of the owner to allow a contractor, who has breached his undertaking by the performance of an unskilled and unsuitable job, additional time or opportunity to rectify his work.”

While probably not the traditional rule, the decision in Brenner demonstrates that cosmetic defects can support a claim for termination for default. While I do not believe the court would have reached the same result without some proof of a structural defect, the decision focused on the “quality of the work” of the contractor which was challenged by the owners.

(more on the top three construction contractor takeaways from the Brenner v. Zaleski case...)

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