Dealing with warranty issues

By Marius Ois, OALA, FCSLAA

A new landscape development tends to take on a life of its own upon completion, and owners, designers and contractors hope for the best. Owners believe that their project will thrive and feel secure about the installation that is guaranteed by the conventional warranty clause in the construction contract. We all have, however, had our own experiences and problems with this particular issue. Although warranties are essential in any supply/service situation, they have contributed too much discontent and misunderstanding between client, consultant, landscape contractor, property manager and maintenance personnel. The problems arising out of this issue never seem to get resolved to everyone's satisfaction. Let us have a closer look and try to resolve this situation.

Warranty and maintenance problems
What is a warranty? A warranty is an obligation generally of a manufacturer or seller for particular goods. Warranty for any manufactured or built item is an essential component of a contract for services and supplies, be it for a new automobile or for a built landscape project. The contracts usually state in very specific terms the conditions and extent of warranties for both the supplier and client. Warranties are of limited duration, and like performance guarantees, should be backed up with the same sort of monitoring, security or collateral. With regards to trees, shrubs and groundcovers for a landscape project, the conventional warranty is usually for one year from the date of take-over, requiring the replacement of dead trees and unacceptable or unhealthy plants. Unfortunately, the description of conventional warranty conditions tends to be vague, incomplete and even ambiguous. Yet contractors accept these unsatisfactory conditions by signing the contract, hoping that the anticipated plant replacements are below five per cent. We all know, however, that a contractor takes chances with warranties as they are written, and some contractors will even refuse to bid on certain projects because of this issue. I remember the case of the University Avenue landscaped median in Toronto, built in the late 60s, where the warranty for all installations was specified to be for five years. My boss at the time refused to bid under these conditions, and the contractor who was finally awarded the contract went bankrupt. A contractor should not be held responsible for even a year to guarantee sensitive and live components such as trees and shrubs, when they do not know how much, if any, maintenance will be given to the installations during the crucial warranty period. Contractors can not be expected to forecast matters which are beyond their control, such as possible adverse weather conditions, wear and tear due to traffic, road salt spray, airborne pollutants, vandalism, excessive herbicide application, incorrect pruning or trimming, lack of watering or premature removal of tree stakes. Perhaps a contractor may be successful in proving that the maintenance done through property management during the warranty period was not up to par, but this takes a lot of time-consuming monitoring and record keeping to prove the case.

     A contractor must also build to specifications, even if he or she may not agree with them, adding another aspect of uncertainty to the warranty responsibilities. Add to this the sometimes less than ideal planting conditions, such as inappropriate planting time, and the contractor has even more reason to fear for further plant losses. It seems that all the responsibility always rests with the contractor, while they have little or no control over the design or the maintenance after project takeover. Not fair? Correct.

There are ways to reduce the landscape contractor's liability to a reasonable level. These are methods and procedures that make a lot of sense, resulting in a better product, improved satisfaction for the client and fairer treatment for the contractor concerning replacement of plantings. No one will have to be a loser, and everyone will be a winner.

Improved warranty specifications
Instead of simply stating that there is a one-year warranty, with the requirement to replace dead or unhealthy plant material, the construction specifications should go much further. They should describe in detail the appropriate maintenance tasks after takeover and describe the conditions under which the warranty will apply, and should require a maintenance manual to be prepared by the contractor for use by property management. This is a common procedure, as for instance in most mechanical or electrical work, which provides guidelines and directions for the owner/property manager to follow. Non-compliance will result in voiding the warranty. The warranty specifications should also address the conditions under which the warranty will have to be upheld, or in which cases, it may not be enforced.

Addenda to tender calls
In the case of a tender call, the contractor has the option (and obligation) to inform the consultant or owner about insufficient warranty specifications. In that case, as it is the case in any normal tendering procedure, the contractor states his or her concerns and requests elaboration and/or changes, which should lead to the issuing of an addendum to the tender documents.

120-day landscape establishment
As a separate section of the construction specifications, the 120-day Landscape Establishment period becomes the responsibility of the contractor. This ensures that the establishment and protection of plants are properly taken care of during the most critical time of a new landscape installation and plant establishment. This section should be similar to a normal maintenance specification and can be customized to each project's particular requirements. The chances of plant failure can thus be reduced significantly. The establishment period is not a radically new idea, but has been a requisite of various agencies and government departments such as the U.S. Air Force on its landscaped sites throughout the country.

Warranty maintenance (Guaranteed maintenance)
As it is the practice in many public work contracts, this method of including maintenance in the contract of a landscape project makes a lot of sense. Here, the contractor has full control over the necessary care of the trees he or she installs. Some contractors may not like the idea of doing maintenance, in which case, they may sub-contract the maintenance. This leaves them still in control over the maintenance work and in control over their warranty responsibilities.

Waiver of contractor's plant replacement warranty
The contractual obligations conditions in a contract shall be carefully drafted, and may spell out in detail the contractor's liabilities and responsibilities with respect to plant replacements for situations that are outside the control of the contractor. The general conditions of the contract may state the various situations that are beyond the control of the contractor. The owner shall release the contractor from the plant replacement warranty if certain conditions exist, i.e.:
  1. The occurrence of significant changes to plant locations without the contractor's prior consent;
  2. The occurrence of vandalism and theft;
  3. Premature removal of tree stakes;
  4. The occurrence of unusual weather events such as damaging ice storms, heat waves and other Acts of God, which are detrimental to plant survival;
  5. The lack of general maintenance required for new plant installations;
  6. Introduction of liquids into the plant's soil, such as salt-laden run-offs, exposure to toxic fumes;
  7. Exposure to herbicides spray;
  8. Winterkill.

What does this all mean to the landscape industry?
In a contractual arrangement for project implementation, our first obligation is to the client by providing excellence in service, leaving behind a project that is viable, healthy and thriving. To achieve this objective, designers, landscape architects and specification writers must do their part to ensure they give clearer direction and detailed work descriptions in warranty specifications. This gives the contractor a fair shot at the time of bidding, providing that the responsibilities of the owners, contractors and property management are clearly stated and sufficiently specified in view of the potentially high costs and wide ranging responsibilities of the all parties involved. Furthermore, planned maintenance strategies developed before tending a new landscape project are critical for a new development. The true success of a landscape project can be measured only after many months of existence under the protection of a suitable and guaranteed maintenance program. Each project is different and deserves individual attention in terms of post-construction maintenance requirements and appropriate warranty conditions. We must persuade owners and clients to accept landscape contracts, which have extended maintenance provisions for trees, shrubs and groundcovers, citing the benefits in terms of landscape quality and costs. Consultants must also become more aware of the significance of improved warranty specifications. In the case of unclear warranty specifications in tender calls, contractors should demand the issuing of addenda to clarify the warranty descriptions. The most effective results, I believe, will be achieved through the combined and concentrated efforts of industry representatives such as the landscape trades associations. The education of the public, government agencies and departments and consultants in all matters concerning landscaping issues, including warranties, must be part of the ongoing process of promoting excellence and professionalism of the industry. As we are aware of the problems with landscape warranties and also know about solutions, there is no reason for us to accept the status quo anymore.