Has anyone dealt with a construction contract that has a “changes in the work” clause, requiring written notice? For defense purposes, did you use that as a defense and/or counterclaim? Any supporting caselaw?

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Would need more information, but that clause generally relates to written change orders. Doing work without written change orders would be a breach.

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Your arguments will depend heavily on the facts of the case. Requiring written change orders and change directives is pretty standard in construction contracts, but it is also fairly typical to find that change order work proceeded before a formal written change order or directive was issued by the owner. A clause requiring written notice to the owner of changed site conditions is also standard, but neither clause would defeat a reasonable value claim.

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Or a constructive change claim.

Some states only enforce notice provisions if the owner has been prejudiced by lack of notice. Check for whether the state courts strictly enforces notice provisions. But yes, we've used that argument before successfully that someone didn't provide the requisite 21 days notice for changes or claims.

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