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Changes in a Construction Contact Without a Change Order


Typically, in North Carolina a contractor or subcontractor is obligated to perform under the contract even though performance is more difficult or expensive than anticipated. However, under certain circumstances, a contractor can become entitled to additional compensation for a constructive change of the construction contract just as if a formal change order had been executed.

A constructive change occurs when certain conditions arise, whether by actions of the property owner, general contractor, or subcontractor, or by a changed condition which materially impacts the work. For example, constructive changes may occur if the property owner misinterprets the contract and rejects work that is actually suitable. Additionally, constructive changes can also take place where a property owner demands additional work or a particular style of performance that exceeds the scope of the contract or if the property owner interferes with performance.

Changed conditions can also be a basis for a constructive change but only if the site condition could not have reasonably been anticipated by the contractor at the time of the bid or if there was a misrepresentation as to the site conditions based upon the owner’s real or constructive knowledge of the site condition. There is also some authority which indicates that the obligation of a contractor to perform under the agreement can altered if performance is literally impossible or so difficult, time consuming, or expensive that it is commercially impracticable.

If you are a property owner, general contractor, or subcontractor involved in a construction contract where additional compensation beyond the terms of the original agreement is involved, contact Maginnis Law, PLLC to schedule a consultation with a construction litigation attorney. Maginnis Law, PLLC is a Raleigh civil litigation firm handling cases in Cary, Morrisville, Wake Forest, Zebulon, and all parts of the Triangle area. Contact the firm at 919.526.0450 or visit our website at www.maginnislaw.com for more details.

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