Developer will not allow contractor on development to collect equipment without a fee.
Problem: Hi. I am the Managing Director of a small building contractor that specialises in the construction of bespoke houses and small volume housing developments. Earlier this year, my company commenced work on a housing development in Rutland for a developer, consisting of 4 detached houses.
The development has yet to be completed, but a couple of weeks ago our employment on the scheme was terminated by the developer. Although my company is challenging the validity of the termination (foolhardy, and we did not have a written contract in place), my pressing problem is that I need to go back to the development and collect the company’s remaining equipment and tools which are still on site, albeit safely stored in a steel container (which we have hired). However, the developer will only allow us access onto site for a fee, which it wants before access is allowed. I do not want to make any payment, and I was thinking about going to the site out of hours and taking what belongs to the company. However, before I do anything that I may regret, do you have any advice?
Thank you. Kalpesh, Loughborough
Response: Hello Kalpesh.
I am sorry to hear of your dilemma, and no doubt you are eager to secure all of your tools and equipment in order to use on other sites.
First and foremost, you cannot enter the site / premises without permission as this would be trespass and you could then find yourself facing a civil, and possibly a criminal, action. However, the developer has no right to retain your property, not even as a lien, and hence it must allow your company to collect its tools and equipment.
Further, the developer cannot demand monies to be paid to it in order to collect your property as this would amount to unlawful conversion (defined as ‘wrongful interference with goods’ under the Torts (Interference with Goods) Act 1977).
Whilst in its custody, the developer will be under a legal obligation to take good care of your property, including providing protection and storage. If the developer believes that your company owes it money, then it must instigate a separate action for money judgement. If the developer fails to return your property, then your company has a good cause of action (relief would be for an order for the return of the tools and equipment, plus damages).
I suggest that you immediately write to the developer stating that it has no right to not return your property, and that it must come to an agreement as to a mutually agreeable date when you can collect the tools and equipment, and of course off-hire the container. You should include in the letter that failure to release the tools and equipment will result in an action for damages, including any expense and costs incurred for hire charges. That said, perhaps the most conducive way forward is to learn of the sum that the developer wants, as it may be commercially sensible to pay this but under protest and without prejudice to any future claims.
© Michael P. Gerard
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.
Author background
Michael is a Practising Solicitor, Barrister, Chartered Builder, Registered Construction Adjudicator & Accredited Expert in quantum and planning matters. He is a Consultant Solicitor with Edward Hands & Lewis, based in Leicestershire.