Delay Claims
Every project runs late. What decides a delay claim is not whether the schedule slipped, but who caused the slip and what the contract says happens as a result.
Delay costs real money on both sides. An owner carries financing, insurance, taxes and often rent or storage while a building sits unfinished, and a commercial owner may be losing revenue from a tenant who cannot open. A contractor whose crews are held on site by someone else's decisions carries extended overhead, idle labor, equipment and escalating material prices.
The legal framework sorts delay into categories, and the category determines the outcome. This is one of the few areas of construction where careful record keeping during the job is worth more than any argument made after it.
How delay is classified
| Type | Consequence |
|---|---|
| Excusable and compensable | Caused by the owner, such as late decisions, late access, design changes or unpaid work stoppages. The contractor gets more time and money. |
| Excusable, not compensable | Caused by neither party, such as unusually severe weather or certain force majeure events. The contractor gets more time but not money. |
| Inexcusable | Caused by the contractor, through undermanning, poor sequencing or subcontractor failure. No extension, and the owner may recover damages. |
| Concurrent | Both parties contribute during the same period. Frequently limits or defeats each side's monetary recovery while still extending time. |
Most contracts require written notice of a delay within a short period of the event, and a request for extension in a stated form. Contractors who work through a delay and raise it at the end frequently find the claim waived by the clause they never invoked.
What each side can recover
An owner's damages are usually carrying costs, lost rent or revenue, and additional professional fees, unless the contract sets liquidated damages at a daily rate. Liquidated damages clauses are generally enforced where the rate is a genuine estimate of loss rather than a penalty, and they remove the need to prove actual loss.
A contractor's delay damages typically include extended field and home office overhead, idle labor and equipment, cost escalation on materials and labor, and the cost of acceleration where the owner demanded the original date be met despite the delay. These require records rather than estimates.
What actually wins these
- The baseline schedule, and updates showing how it changed and when
- Daily reports, manpower counts and site logs
- Written notices of delay given at the time, in the manner the contract required
- Requests for information and how long they took to be answered
- Change orders and the dates decisions were actually made
- Weather records where weather is claimed
- Correspondence showing directions, stoppages and access problems
- Cost records tying the extended period to specific expenditure
How these matters run
- The contract clauses read firstNotice requirements, extension procedure, liquidated damages, and any clause purporting to bar delay damages entirely.
- The timeline reconstructedBaseline against actual, with each delay event identified, dated and attributed. This is the substance of the claim.
- Notice history checkedWhether contemporaneous notice was given. Where it was not, whether the conduct of the parties affects that.
- Quantify and resolveDamages calculated from records, then negotiated or pursued in the forum the contract specifies.
Questions about delay
The owner kept changing their mind and now blames me for finishing late.
Owner caused delay is normally both excusable and compensable, meaning more time and potentially more money. The question will be whether you gave the notice the contract required at the time. If you did not, the claim is harder but conduct and correspondence can still matter.
My contract has liquidated damages of a daily amount. Is that enforceable?
Usually, where the rate is a reasonable pre estimate of the owner's loss rather than a penalty designed to punish. The more productive questions are normally how many days are actually attributable to you, and whether any of the delay was excusable or concurrent.
Can I stop work if I am not being paid?
Only if the contract permits it and the required notice is given. Stopping work without that right converts you from the party with the payment claim into the party in breach. Get advice before walking off a site.
Weather delayed us. Does that count?
Ordinarily only where it is unusually severe for the location and season, and where the contract treats it as excusable. Normal Michigan winter conditions are generally treated as foreseeable and are expected to be built into the schedule.
Give notice during the delay, not after it.
[PHONE]Matters with a lien deadline, a filing deadline or a hearing already on the calendar are handled by phone.