Your Recourse

Throughout the process of acquiring your new home, whether before, during or after the purchase, you may find yourself in a position of disagreement with your contractor.

Before opting for the legal procedures and remedies provided by law, it may be wise to start with a negotiation.

Among the various means of settling an out-of-court dispute, negotiation is the most flexible and informal: the two parties will have the space to look for a solution acceptable to everyone. There are no formal rules or procedures imposed by a third party. You adopt the rules of conduct for negotiation according to your needs and interests.

It is also a voluntary process: no party is required to participate, and anyone can end the discussion at any time. This is why you must first ensure that the contractor agrees to negotiate, and that the agreement will be respected thereafter.

Unlike other modes of dispute resolution, negotiation can take place upon discovery of a breach by the entrepreneur, without needing to send a formal written notice. We recommend that you send a notice form before, and discuss it later, so that no one can blame you for not meeting the deadlines.

When to start a negotiation?

Negotiation is nothing more than a discussion during which you represent your interests. You can start a negotiation as soon as you disagree with the contractor, without resorting to a written claim.

Note that negotiations can be done verbally or in writing. If you correspond in writing, your correspondence should contain a statement "subject to all reservations" so that the content of your message cannot be invoked against your rights. This is especially helpful when you make settlement offers.

It is possible to negotiate at any time, negotiations last until one party decides to end them, and they can also resume at the option of the parties. You and the contractor can agree to a settlement at any time between the time the problem arises and the time an arbitrator or court makes a judgment.

Here are some preparation techniques for better negotiation:

1. Identify the solution you are looking for before meeting your contractor and be able to express it to move the discussions forward. Suggest a solution to move the discussion forward.
2. Learn about your rights and obligations to make reasonable requests and to be able to explain to the entrepreneur that it is in their interest to comply with them. He is more likely to comply if you arrive with a reasoned position.
3. Define your BATNA (Best Alternative to a Negotiated Agreement) before starting the discussion with the contractor. It will allow you to better judge the quality of a possible offer from the entrepreneur.
   
4. Do not feel obliged to accept a proposal which seems unreasonable to you, since you always have the possibility of lodging a complaint with the procedure provided for in the Regulation on the Guarantee plan for new residential buildings.
5. If you negotiate in writing, take the time to read it again. If the messages are particularly busy, take a break before rereading yourself to use composure and avoid emotional outbursts!

Watch out for deadlines!

Since negotiation is not provided for by the Regulation on the guarantee plan for new residential buildings, it is essential to take into account the deadlines of the Regulation in order to always benefit from the coverage of the Guarantee Plan in the event of premature failure of the negotiation. So, don't forget to report the problem as soon as possible!

For example, you notice a hidden defect and are quick to report it to the contractor in the next few days. He will answer you and offer an unsatisfactory solution. You can then choose to wait 15 days and submit a formal claim to the administrator of the Residential Guarantee Plan, or you can try to speak with the contractor to negotiate a solution that will be acceptable to both parties.

Agreement or not?

You are interested in a negotiation, but think you cannot communicate the defect found and the desired solution, or you feel disadvantaged compared to your contractor who is familiar with the construction field and the Guarantee Plan?

Do not be discouraged! You can ask for the help of a professional (lawyer, mediator, etc.) who knows the negotiation process and who can guide you or draft a possible agreement.

Negotiation is only the first step. If you cannot reach an agreement, you can always file a claim with the administrator, if you have previously reported the problem to the contractor and waited 15 days following the notice. The Residential Guarantee Plan (GCR) administrator will then analyze your claim and make a decision. If you do not agree with this decision, you can request mediation or arbitration.

What’s next?

You can make a request for arbitration directly or agree with the contractor to organize a mediation. If this mediation is not successful, you can still go to arbitration.

Before opting for one remedy over another, it is necessary to take into consideration various elements, among others: the time you plan to invest, the costs, and your degree of participation.