Notice: Actual probably isn’t enough

03/02/2011

Most construction projects have notice requirements requiring notice to be given to the other side, in writing, at specific times, to specific persons, and including specific information. The reality, though, is that construction projects move quickly and lend themselves to focusing upon construction and not administration. Unfortunately, though, this can lead to problems down the road when disputes need resolution.

Virginia courts generally incorporate contracts as they are written. As a result, courts will not typically rewrite terms or allow parties to avoid conditions to which they agreed in their contracts. As a result, failure to comply with notice requirements can void otherwise valid claims.

Because this can create harsh results, courts have sometimes tempered this result by finding that when another party has actual notice, however obtained, that actual notice is legally sufficient even if not totally compliant with the contract requirements. Virginia courts have done the same, but have not expanded this to public projects because of the doctrine of sovereign immunity.

That is the legal principle that precludes suit against the state or its public bodies unless there is a statute specifically allowing suit. Public bodies partially waive sovereign immunity under statutes allowing them to sue and be sued; however, recent ruling by the Virginia Supreme Court holds that this partial waiver does not extend to the waiver of contractual notice requirements.

To the contrary, the court dismissed a contractor’s claims because the contractor failed to comply with the contract’s notice requirements, even though the public body had actual notice of the claims. Unfortunately, this result disregards the reality of construction projects, where the focus is on getting the job done and not the paperwork.

The takeaway point is that you always disregard specific contractual provisions at your own risk. While courts sometime can and do use their equity (fairness) power to help avoid unfair results, that is not always the case, and recent case law confirms is not available to avoid contractual notice requirements imposed by a public body.

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