Conflict of Interest? Partner is also the General Contractor

Conflict of Interest? Partner is also the General Contractor

Real Estate Investor · Sacramento, CA · Member since 2010 · 292 posts · 103 votes

I recently got involved in joint venture that's now starting to smell. The facts are:

Partner is a general contractor who was supposed do the rehab, with his efforts and also using subs when needed. He's working off rehab estimates he alone supplied. No other bids were obtained from other contractors so I can't compare the competiveness of his numbers. I tend to feel  his rehab budget  was based on  "best guess estimates."  Project is about 75% completed and he's saying the completion is near and should finish under budget. I hope he's right, but I'm also wondering, if his cost estimates were high to begin with, finishing "under budget" is sort of meaningless.  Also, there doesn't appear to be any clarity about who accrues any cost savings. Ideally, I think it should be the partnership. Rehab expenses have been financed with a construction loan, but the invoices he's been submitting for draw requests lack any detail. They simply say things like, "Fencing, $1000 installment, $500 balance due. Bathroom remodel, $2500 installment, $2000 balance due."

Presumably as items are completed the lender inspects to confirm the work is finished before issuing a check, but they are not asking for nor receiving detailed invoices for materials or labor hours worked.  This appears very problematic and ripe for abuse, because as long as the contractor doesn't exceed his rehab estimate, it appears he can accept a draw payment, reimburse himself for materials and labor, and pocket the difference. If he's not giving detailed invoices to the lender, I think he at least needs to be providing them to me, so I can understand when expenses meet, or exceed, or are less than his original estimates.   This is my first partnership where someone else was doing the buying of materials and labor. We have a written agreement that only says he will be in charge of "managing construction," but I definitely want to avoid a situation whereby he makes all the profit as the contractor, but leaving little or nothing to split to his partner. Does anyone else agree that it's a conflict of interest to have the working/managing  on construction partner also be the one who estimated rehab costs, and who is receiving draws without submitting actual cost data to his partner? I want to know how close he's coming to the budget, and most importantly, how much he's paying himself. Without that, I have no idea if he's keeping any excess, or setting it aside to be distributed to the partnership.  Would love any thoughts. Are my concerns legitimate or overblown?   Thanks!

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Specialist · Indianapolis, IN · Member since 2016 · 841 posts · 480 votes
9y

There should be a contract for the work. This is no different than any other rehab. There should be an approved estimate and costs should be known. There should be 10-15% in reserve for unforeseen issues. There should be documentation on what is happening. Like any other rehab where you are using a contractor - funding should be cut loose in draws. Before draw 2 is issued, draw one must be verified and inspected to your satisfaction. Material and labor costs should be up front - that's part of an estimate. There should be a firm budget in place on this. If the contractor - partner or not, can't do all of this, then it's a bad deal. This is just another part of your investment equation - if it doesn't fit - it's a bad deal. This is just like scope of work on a rehab. Investor needs to know what the actual costs will be to rehab a property. If the costs aren't understood, inline and intended ROI can't be hit - it's a bad deal from the word GO.

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  • Jerry W.Pro Member
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    Investor · Thermopolis, WY · Member since 2012 · 4k+ posts · 4k+ votes
    9y

    @Ed B., when it comes to a JV you got exactly what you bargained for. One of the biggest problems with loosely drawn joint ventures is that there is no clarity and each person goes by what they think. Only you can decide if talking to your partner about it will be a good or bad thing. If you knew he was going to be the contractor you cannot claim conflict of interest because you agreed on it. You are not in a great spot. One of the biggest things in a JV is trust. If you have no history with the guy you have not built up trust. He may be saving you money or ripping you off. The numbers and outline of splitting costs etc should have been set out clearly. Your best bet is to talk to him and see what his understanding is. You also need to read your written agreement very carefully. You could try to bring in another contractor to look at things and that of course would probably offend your partner. If you have lost faith you need to resolve it somehow. By having the talk it could break down trust, or it could help you realize you are being taken advantage of. Hard to tell, you are the one most likely to know how it will affect how you get a long with the JV. Either way you need to talk and get some answers, but the best way would have been to do that before putting money into a JV.

  • Contractor · Rosemount, MN · Member since 2016 · 54 posts · 23 votes
    9y

    Hello Ed,

    I hate to say it but, it sounds as though your partner is being somewhat One-sided here. I am a GC and can tell you that were I in the same situation, I'd want my partner to know every last detail about materials costs, expenses, labor, etc. My first impression is that he's pocketing the difference and not being honest with you. I do hope you both work it out but, I'd request all receipts or refuse to do any more business with him. Honesty is always the best policy. I'd be very interested to see some of his rehab numbers.

    Best of luck

    Keith

  • Flipper/Rehabber · Montgomery, NY · Member since 2016 · 2k+ posts · 1k+ votes
    9y

    What was the agreement when you and him became partners. A contractor coming to your house will charge you $4500 for a scope of work. He won't show you every dollar he spent or every hour his guys worked. Like Project in your home, if you were happy to get it done for $4500, it didn't matter if it was all profit or no profit for him.

    With that said, if your agreement was his company gets paid back for materials and minimum for their labor and any/all profits after would be split, he needs to be more transparent on what he is charging. If your agreement was to pay him, he may not need to give more than an invoice for labor and material with no breakdown for a lump price, leaving you to wonder what you have exactly paid for.

    Hard to say if he is or isn't taking advantage, or actually working to save your team money and gain higher profits.

  • Specialist · Indianapolis, IN · Member since 2016 · 841 posts · 480 votes
    9y

    There should be a contract for the work. This is no different than any other rehab. There should be an approved estimate and costs should be known. There should be 10-15% in reserve for unforeseen issues. There should be documentation on what is happening. Like any other rehab where you are using a contractor - funding should be cut loose in draws. Before draw 2 is issued, draw one must be verified and inspected to your satisfaction. Material and labor costs should be up front - that's part of an estimate. There should be a firm budget in place on this. If the contractor - partner or not, can't do all of this, then it's a bad deal. This is just another part of your investment equation - if it doesn't fit - it's a bad deal. This is just like scope of work on a rehab. Investor needs to know what the actual costs will be to rehab a property. If the costs aren't understood, inline and intended ROI can't be hit - it's a bad deal from the word GO.

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