Introduction: The New Reality of Construction Communication
Construction projects have always depended on a constant stream of communication. Today’s project managers, superintendents, and foremen have broadened the method of communication to include convenient forms of digital communication. Superintendents text photos of field conditions, owners send quick approvals through WhatsApp, architects clarify design intent in a Teams chat, and subcontractors coordinate sequencing through group texts. These channels are fast, convenient, and deeply embedded in modern project culture. Yet the legal framework governing construction contracts has not evolved at the same pace. Many contracts still assume – or require – that notice, directives, and approvals occur through formal written channels—letters, emails to designated recipients, or structured project‑management platforms. This disconnect creates significant legal risk, particularly for contractors who rely on informal messages as authorization for extra work or schedule changes. Courts are increasingly asked to interpret text messages, chat threads, and screenshots as evidence of notice, direction, or waiver. The outcomes vary, but the trend is unmistakable: informal digital communication is now part of the project record, and it can bind parties in ways they did not expect.
How Informal Messages Become Legally Significant
On most projects, field personnel communicate through whatever channel is most convenient. A superintendent may text the owner’s representative that a design conflict is delaying work, and the owner may respond with a quick “go ahead and fix it—we’ll sort it out later.” To the people on the ground, this feels like a directive. To the lawyers reviewing the contract months later, it may look like an unauthorized commitment. Informal messages often contain approvals of submittals, authorization to proceed with extra work, clarifications of design intent, or requests for resequencing or acceleration. If these communications occur outside the contract’s formal notice provisions, they create ambiguity. If they are difficult to retrieve and use as documentation, they create risk. And if they cannot be retrieved, then it’s not very helpful. Contractors may believe they have authorization, while owners may later deny that the message constituted approval. Courts must then determine whether the informal communication satisfies contractual requirements or creates a binding commitment through waiver, modification, or estoppel.
Do Text Messages Constitute Contractual Notice?
One of the most common disputes involves whether a text message or chat thread qualifies as “notice” under the contract. Some contracts, like the ConsensusDocs forms, simply require “written” notice. Other contracts are more specific, requiring notice to be sent to a specific individual and/or a specific address. Requirements may also include a specific timeframe and specified content. The lawyers in our New York office joke about seeing a contract requiring use of an “11 point font.” That’s likely an exaggeration, but it’s a convenient way to remember the point. A text message may not satisfy specific contractual requirements literally. However, courts increasingly apply a substantial‑compliance standard. If the message clearly communicates the position, reaches the right person, and gives the owner an opportunity to respond, courts may treat it as effective notice even if it does not strictly follow the contract’s formalities. Courts look at whether the message was sent to someone with authority, whether the recipient understood it as notice, and whether the owner acted on the message. They may also consider whether the contractor relied on the owner’s response. In many cases, courts conclude that the owner cannot ignore a message simply because it arrived by text rather than email. But the analysis is fact‑specific, and contractors cannot assume that informal notice will always be accepted. In addition, courts in some jurisdictions are very strict in enforcing notice requirements.
Authority Problems: Who Can Bind the Company Through a Text?
Authority issues are not new to the digital age. But forty years ago, communications were more formal and typically sent by someone whose authority was not in question. Today, less formal communications complicate the authority issue. Did those in a broader communication network all have authority to bind the company? A superintendent may text a subcontractor “go ahead and proceed—we’ll issue a change order later.” If the contractor later refuses to pay, the subcontractor may argue that the superintendent had apparent authority. Courts examine the individual’s job title and responsibilities, past practice on the project, whether the contractor allowed the individual to communicate directives, and whether the subcontractor reasonably relied on the communication. Similarly, owners may argue that their field representatives lacked authority to approve extra work. But if the owner consistently allowed those representatives to issue directives, courts may find that the owner is bound by their messages. The informality of digital communication makes it easy for individuals to appear to speak for the company, even when they lack actual authority.
A companion issue is whether the communications were broad enough. Was every stakeholder included in the communication? In the press to make a decision, it’s important that all decision-makers had an opportunity to understand the issue and participate in the decision.
Text Messages as Evidence in Claims and Litigation
Text messages and chat threads have become central evidence in construction disputes. They often provide the most accurate timeline of events, capturing real‑time reactions, directives, and acknowledgments. Courts increasingly rely on these messages to determine when the contractor notified the owner of a delay, whether the owner approved extra work, whether the contractor warned the owner of cost impacts, or whether the owner interfered with the contractor’s means and methods. However, informal messages can also undermine a contractor’s position. A superintendent’s casual “we’ll take care of it” text may be interpreted as a waiver of a claim. A foreman’s message blaming a delay on weather may contradict a later claim finding the critical path running through a compensable delay. The discovery burden is also significant. Parties must preserve and produce text messages, including metadata. The costs for simply extracting such data can be upwards of $500 per device, not to mention time spent and costs incurred reviewing the data from years-long projects. Group chats involving mixed parties create additional complications. While data from applications like WhatsApp and Slack are generally recoverable, the time and effort (and monetary costs) of recovering that data depends heavily on the user’s personal settings and backup for the device. Moreover, the possibility of not being able to recover this data is very real. A group might have been cancelled. Messages might have been deleted. Failure to preserve messages can lead to adverse inferences in court.
When Informal Messages Override Contract Procedures
Repeated reliance on informal communication can modify or waive contractual requirements. If an owner consistently accepts text‑based notice, it may be estopped from insisting on formal notice later. If a contractor routinely receives directives by text and performs the work, the owner may be bound by those directives even if they avoid the contract’s change‑order procedures. Courts look at the parties’ course of performance. If the project was run through texts and chats, the court may treat those messages as the operative communication method, regardless of what the contract says. In effect, the parties’ conduct can rewrite the contract.
Best Practices for Contractors
Contractors can reduce risk by adopting clear communication policies. Field personnel should understand that texts and chats can have legal consequences. Messages should be professional, accurate, and limited to factual information. When responding informally, contractors should use disclaimers such as “subject to formal approval” or “please submit through the contract process.” Knowing and following the contract process is never a bad idea.
Alternatively, contractors could also align their contract language with actual communication practices. If the project will rely heavily on digital messaging, the contract should acknowledge that reality and define how informal communications will be treated. Preservation policies should ensure that text messages and chat logs are retained in a manner consistent with litigation‑hold obligations.
Conclusion
Communication in this industry has always been critical. Informal digital communication can help in that process. Texts, chats, shared photos, and informal emails are opportunities to speed that communication. But with that comes the possibility of confusion about whether commitments are binding, whether notice requirements are satisfied, or whether claims are contradicted by offhand comments. Contractors must treat these informal communications as part of the project record and manage them with the same care as formal correspondence. The law is evolving, but the trend is clear: informal messages carry real legal weight, and contractors must adapt accordingly.
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The views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.