Archive for the ‘Common Topics’ Category

Construction Lien Removal Suit in Louisiana

On April 5, 2012 Author By Seth Smiley

Attention all home owners or property owners, there is only one surefire way to have that annoying illegal lien (in Louisiana called a statement of claim and privilege) removed from the title of your property, a Mandamus action. In Louisiana and other states, a Mandamus can be used for a number of things (listed out in La R.S. §44:114) and it is a summary proceeding, meaning that it should go faster than ordinary litigation.

The Louisiana Private Works Act codified in La. R.S. §9:4801 et seq., is the origin of the rules which govern construction liens for private projects in this state. The specific statue that allows for an individual to request a Court to order the Clerk of Court to cancel a lien is La. R.S. §9:4833. The statute reads in pertinent part:

If a statement of claim or privilege is improperly filed or if the claim or privilege preserved by the filing of a statement of claim or privilege is extinguished, an owner or other interested person may require the person who has filed a statement of the claim or privilege to give a written request for cancellation in the manner provided by law directing the recorder of mortgages to cancel the statement of claim or privilege from his records.” La. R.S. §9:4833(A).

The best part about this statute is that if all of the proper notice requirements are followed and the illegal lien is not removed from the mortgage records by other means than this Mandamus proceeding, the property owner who brings the Mandamus suit is entitled to attorney fees and costs. This is huge because, this type of proceeding can cost a homeowner thousands just in legal fees. Here at Wolfe Law Group, we charge a flat rate of $3,500 for this type of proceeding, which covers all things from notices, to the actual Mandamus suit, to the trial.

Liens can be very technical and there are many instances where the letter of the law is not followed. In those instances, an owner can have the lien removed and even against the will of the party who filed the lien. As a contractor, filing a lien is very important to preserve rights against parties it did not contract with who may be liable for payment. Here at Wolfe Law Group we file liens all the time, but if your are like most contractors, funds are short and hiring an attorney can be too costly. Companies like Zlien.com are excellent resources for all things related to liens. Fortunately for lawyers and unfortunately for services like Zlien.com, enforcement of a lien and/or a Mandamus suit for removal of an illegal lien can only be filed by an attorney (or individual if self represented). I recently posted a Petition for Mandamus recently drafted and filed by Wolfe Law Group on JDSupra.com.

Bottom line: owners should file suit to have illegal liens removed from the mortgage records. If not then selling or refinancing the property will be impossible with the cloudy title. If you file suit and receive a judgment then you will be entitled to attorney fees and costs, which are provided by statute.

Posted in:     About Our Services, Construction News, Damages, Dispute A Lien, Litigation, Louisiana, Mechanics Lien  /  Tags: , , , , , , , , , ,   /   Leave a comment

New Orleans City Council Passing Construction Requirements

On March 29, 2012 Author By Seth Smiley

Two weeks ago the New Orleans City Council passed and ordinance that is purported to beef up labor violations for city construction contracts. The council was sharply divided whereby the ordinance passed by a 4-3 final vote.

The ordinance is best described by the City Council’s own publication:

“The Council adopted Ordinance Cal. No. 28,899, authored by Council Vice President Granderson that requires that contractors and subcontractors with city construction contracts of more than $50,000 report to the City Attorney any current company violations of federal, state and municipal laws that govern labor and employment. Specifically, the contractor is required to give notice to the City Attorney within 90 days of the issuance of any labor violation determination. If the contractor fails to correct the violation within a 90 day period the City Attorney will issue a written notice to the contractor and take enforcement action including civil remedies.”

There are many supporters and critics of the new ordinance. Many of the opponents say that it will just create needless paper work for contractors and will not solve the root cause of the problem. Although, supports say that since Katrina undocumented workers have been hurting union workers doing it by the book. The New Orleans City Business and NOLA.com both have their takes on the issue with good write ups. Overall this sounds like it will create more paper work for contractors and subject them to vague and ambiguous labor laws (where they are already subject to them anyway).

Having dealt with the City Attorney’s office in the past, this seems like it will simply be a bullet in its gun when going after small businesses. The city claims that if contractors are obeying the law they have nothing to worry about, unfortunately based on past client experiences, that is not likely the case. Just what the construction industry needs right now, another law.

Posted in:     Building Codes, Business Matters, Construction News, Labor Law, Louisiana  /  Tags: , , , , , , , , ,   /   Leave a comment

Around The Web: Housing Bubble On The Rise Again?

On March 28, 2012 Author By Seth Smiley

Back in 2008, along with major sections of the U.S. economy, the U.S. housing market tanked. This was a terrible time for home builders and most contractors in the industry. There was a ripple effect that was felt industry wide. Signs of the the rebound have been few and far between. We are now one quarter deep into 2012 and there are a few positive signs that the end of the drought may be near.

Just last week CNN reported very good numbers for building permits nation wide. According to the article, new home building permits are up from month to month and a large amount from this time last year. There is also an increase in the number of new apartment / condo permits that are being requested nationwide. The article stated that major contractors and home suppliers are seeing increases in stock value and revenue stream.  Some sites like yahoo.com published a Reuters article stating that there is a “housing comeback.”

A wide range of cities nation wide are reporting similar findings, such as Portland, Oregon and Dayton, Ohio. If this trend keeps up there is a good chance that the housing market will rebound and home sales will start to improve.

Posted in:     Around The Web, California, Construction News, Federal, Law Changes & Updates, Louisiana, Oregon, Washington  /  Tags: , , , , , , , , , , ,   /   Leave a comment

New Orleans Business Market Receives National Acclaim

On March 21, 2012 Author By Seth Smiley

Over the weekend a good friend living in New York City, sent me a link to a Wall Street Journal article which outlines what all of us here in New Orleans have been seeing over the past few years, new exciting business growth. The article by Douglas McCollam, talks about the success of the non-profit Idea Village which was started in NOLA a decade ago.

The most telling aspect of McCollam’s piece is how he sees, and how it is apparent to New Orleans residents, that the attitude and culture of business has changed. Hurricane Katrina helped to rid the city of the negative attitude and filled it with a group of forward thinking resilient entrepreneurs who want to make a difference, while at the same time making a dollar.

One of the more colorful excerpts from McCollam’s article addresses the problem with the former attitude of the city,

“We had found the root of the problem.” It’s a problem that New Orleans seems to have overcome in the years since Hurricane Katrina—so much so that Mr. Williamson can now afford a little levity.

Other positive organizations that are helping to aid in business growth and entrepreneurial spirit include the New Orleans Startup Fund. This all ties into constructionlawmonitor.com because, NOLA startup fund recently picked Zlien.com as one of its featured start up companies to help grow and become a successful New Orleans and nation-wide company. Zlien.com was founded by Wolfe Law Group founder, Scott G. Wolfe, Jr. Scott is the embodiment of the Wall Street Journal article and the national focus on our great city.

The winds of change are among us here in New Orleans and its a great time to live in this city. McCollum points out that Forbes and Inc.com have recently coined New Orleans as a harbor for business growth and young talent. Only time will tell how this will change this city, but it will be a fun ride nonetheless.

Posted in:     Around The Web, Construction News, Louisiana, Uncategorized  /  Tags: , , , , , , , , , ,   /   Leave a comment

Construction Contracts – Pay Now to Save Later

On March 9, 2012 Author By Seth Smiley

All to often in my job I am faced with clients who end up in a dispute on a construction project. Whether it be a public or private, commercial or residential, and no matter how large or small the project or contractor, the first question I ask any potential client is – where’s the contract? The contract is the cornerstone of any construction project and eventual dispute. It contains the scope of work and all provisions which govern when disputes arise.

Construction contract defined:

Construction Contract:A legal document which specifies the details of a construction project. A good construction contract will include: 1.The contractors registration number. 2.A statement of work quality such as ‘Standard Practices of the Trades’ or ‘according to Manufacturers Specifications.’ 3.A set of blue prints or plans. 4.A set of specifications. 5.Any allowances. 6.A construction timetable including starting and completion dates. 7.A fixed price for the work, or a time and materials formula. 8.A payment schedule. 9.A written warrantee. 10.A clause which outlines how any disputes will be resolved.

Any savvy contractor will have a custom tailored contract for each job that will help put that company in a good position when the dispute arises and its time to call the lawyer. A thousand dollar contract upfront can save a contractor thousands upon thousands later on in the project. Properly written ADR clauses and indemnity clauses can save a contractor thousands in legal fees and court/administrative costs.

All to often, I will have contractors operating on oral agreements, (just a handshake and a man’s word!) or I have contractors who download a form off the internet, not knowing what provisions lie within. In these current times, form documents and oral agreements are unacceptable. Parties who operate like this will lose money over the long haul, especially those who want to operate on a large scale and actually make money. Otherwise, the big boy contractors will make you use their contracts which are so lopsided that the other contracting party will never prevail in any dispute.

If you as a contractor are considering using  or signing a contract given to you by a contractor you are subbing to, then you should have that agreement reviewed by a professional so as to make sure the sub’s rights are protected. For more information see Wolfe Law Group’s website regarding contract drafting and contract review.

Posted in:     About Our Services, Construction Contracts  /  Tags: , , , ,   /   3 Comments
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