Archive for the ‘From The Experts’ Category

Happy Holidays – Goodbye 2011, Hello 2012

On December 29, 2011 Author By Seth Smiley

The week between Christmas and New Years is typically a slow one for the legal and construction industries. Although, many projects rarely see breaks, this is a time when many companies take a look at the year that was, and reflect on all of the good, bad and ugly. Then look to the year that will be so that it can be made better than the last.

For most of us 2011 was a rebounding year or even a rebuilding year. The economy has leveled out (somewhat) and the public sector is pushing the construction industry forward. There is money starting to move in the private markets which will make way for projects into 2012.

I am optimistic for the year to come and feel like things are moving in the right direction for the construction industry. For those companies who have weathered the storm, hopefully good days lie ahead. For those who did not make it, there will be other opportunities where wise decisions will manifest from woeful past experience.

So from all of us here at the Wolfe Law Group we like to wish all of our clients, readers, followers, friends and family the happiest of holidays. Best of luck into the new year, may exciting times lie ahead.

Posted in:     From The Experts, Louisiana, Uncategorized  /    /   Leave a comment

Your Mechanics Lien Resource Treasure Trove

On June 23, 2011 Author By Scott Wolfe Jr

Mechanics Liens used to be a cornerstone topic on this blog; meaning I would write an article about filings, foreclosing and/or litigating a mechanics lien quite frequently. In fact, over the years I sort of consider myself a “lien guy.”  Insofar as construction law goes, mechanic lien and state or federal bond claims has sort of become my thing.

So, where has all of the mechanic lien posts gone?!

If you’re a reader of this blog but not my other blog – The Construction Lien Blog – you may be wondering.  But as you can gather from the blog’s title, a few years ago I created a separate blog focused on lien issues across the country, and post very regularly there on the topic.

As I exhaust the subject on that blog, and don’t to duplicate postings from there over here, most of my mechanic lien and bond claim talk is done on the Construction Lien Blog.  So, if you’re interest in lien laws (and if you are a construction participant or construction law person, lien laws are super important), I recommend you take a look at this other blog.

To give you a more direct path to relevant information, here are the articles posted on the construction lien laws in the states where Wolfe Law Group practices.

Also, be sure to check out these other resources providing through the lien and notice preparation and management company I founded in 2007, Zlien:

Posted in:     Around The Web, From The Experts, Mechanics Lien, Miller Act Claims, State Bond Claims  /  Tags: , , , , , , ,   /   2 Comments

Tips For Hiring A Residential Contractor

On April 4, 2011 Author By Scott Wolfe Jr

Alicia Lagarde CraigWe’re happy to hear from Alicia Lagarde as a guest blogger on the Monitor this week. This blog focuses a great deal on construction law from the perspective of the contractor, supplier or subcontractor. It’s a nice change of pace to have Alicia posting on our site to discuss a perspective that is very important and popular, but not frequently discussed here: the perils and challenges of hiring a contractor to perform home repairs or construction.

Alicia Lagarde is a licensed REALTOR® in the State of Louisiana, serving Metropolitan New Orleans, including the Northshore.  As an agent for Keller Williams Realty New Orleans,  Alicia is dedicated to finding the perfect property that best suits your needs and goal. Visit her website at http://www.myNOLAhome.com, and her blog at http://alicialagarderealtor.blogspot.com/.

How to Find a Contractor – Choosing the right contractor will save you time & money.

• Ask friends and trusted associates who have already hired contractors for recommendations

• Check out potential contractors with consumer protection groups, such as the Better Business Bureau of New Orleans: www.neworleans.bbb.org or 504-581-6222. BBB’s video, How to hire a contractor, can be purchased from their online resource library.

• Ask for proof that potential contractors are licensed with the State of Louisiana, and verify with the State Licensing Board at: www.lslbc.louisiana.gov/findcontractor.asp or call (225) 765 2301 to verify licensing.

• Ask potential contractors about their familiarity and experience with energy efficiency, being environmentally responsible, and providing healthy building practices and materials.

Hiring a contractor

Once you have found a licensed contractor who checks out with the BBB or another consumer protection group, ask for:

–A list of references, particularly of projects similar to yours and make sure to call    the references to check them.

–Lists of subcontractors and suppliers and verify that they pay their debts on time.

–Proof of current insurance (should include General Liability, Worker’s Compensation and Builder’s Risk). Make sure to obtain an insurance binder with you listed as the additional insured from the contractor’s insurance company before signing a contract.

–The contract should be modeled after standard American Institute of Architect’s (AIA) construction contract. Contract templates can be purchased at: www.aianeworleans.org

–Before signing the contract, make sure you understand the terms and conditions. If necessary, ask an attorney or a neutral party familiar with the construction process to advise you.

Payment

–Ten percent (10%) of the contract is the most a legitimate contractor will request for a deposit.

–Payment should proceed according to the contract. Pay only for what has been completed.

–Do not pay in cash, write a check and keep written records of all payments.

–Keep written records of paperwork, conversations and activities, including photographs of the completed work.

–Changes to the scope of work should be estimated and approved by the contractor and you in writing before they are begun; make sure to get 2 original copies of the changes in writing and you also want to make sure that both you and the contractor sign-off on these changes.

–Do not make final payment until all work is completed to your satisfaction, all subcontractors and suppliers are paid, and the jobsite is clean and cleared of all debris.

Posted in:     From The Experts  /  Tags: , , , ,   /   Leave a comment

5 Tips for Writing a Construction Contract

On March 28, 2011 Author By Scott Wolfe Jr

From time to time, I have someone guest post here on the Construction Law Monitor, giving our readers a fresh perspective on construction law topics. Today, Emma Martin has contributed a post that I think is really great. She is a writer for CB Structures, a family owned construction and engineering company that specializes in garage builders and pole building design. What’s great about her post is that it discusses a very legal topic – construction contracts – from the perspective of someone in the business. Enjoy her insights, and to learn more about construction contracts, read from this category on our blog: Construction Contracts.

construction-contractsA contract is an extremely important document for anyone who undertakes the type of business partnership necessary to get a construction project off the ground.  But why is a contract necessary?  For one thing, it lets everyone involved know exactly what is expected from all parties.  For example, you will likely talk through an agreement pertaining to the price for labor as well as set deadlines for certain aspects of construction to be complete.  Putting it down in writing ensures that everyone is on the same page and that all are protected.  Should your contractor fail to deliver agreed-upon services, you have a legally binding document to bring into court as a security of recourse.  In addition, your contractor has the same should you fail to pay.  In short, contracts are a must.  So how do you go about getting one?

1. Get professional help.  The easiest way to get a contract is to hire a lawyer to write it up.  There are law firms that specialize in contract law and they can take your information and draft a document that is tailored to your specific needs.  This can be pricy, but the upside is that any loopholes that lose you money are on their head, and you can always sue them for recompense should your contract fail to hold up in court.  It’s like doubling your insurance.

2. Start simple. If you’ve never written a contract before, you are going to need some help to ensure that it’s done right.  Most people hire a law firm or other experienced contract writer to take care of this for them, but if you’re determined to go it alone (or you simply don’t have the extra cash to hire help), then at least search online for a template to get you started.  It will include the general legal text required to make your contract binding, although you will have to fill in the details.  Just be aware that you get what you pay for.

3. Pen the particulars. Two things that must be included in your contract are dates and payment amounts.  You need deadlines in place to ensure that your project is done in a timely manner.  Of course, you’ll have to keep in mind that any changes you make will affect deadlines, but assuming that everything remains the same, you should be able to count on your contractors to deliver what they promise (and a contract ensures that they will, or they will pay for it).  In addition, you will likely want to hold payment until certain milestones have been met.  For example, you are expected to pay a certain amount up front (25-50%, for example) as a retainer, as well as providing funds for all materials.  But you don’t want to pay in full until the job is complete, so be sure to detail your payment schedule in the contract.

4. Sign on the dotted line. Once both parties have agreed upon all items in the contract, it needs to be signed to go into effect.  This should be done with a notary (or legal representation) present to witness and two copies should be signed so that each party can retain an original.

5. Make changes. Unfortunately, changes are likely to occur even after the agreement has been finalized.  Bad weather, late arrival of materials, or other unavoidable road blocks are common in construction.  This, along with any change of plans on your part, could set back the schedule.  So just be aware that a little flexibility will likely be required and you will need to fill out a change order to add on to the original contract so that you are covered in case of a legal dispute.

    Posted in:     Construction Contracts, From The Experts  /  Tags: ,   /   Leave a comment

    Why You Should Lien First (and Ask Questions Later) in Virginia

    On May 18, 2010 Author By Wolfe Guest

    Christopher Hill is a LEED AP and construction lawyer in Richmond, VA.  He is a member of Virginia’s Legal Elite in Construction Law and authors the Construction Law Musings blog.  You can also follow him on Twitter at  @constructionlaw.

    First of all, thanks to Scott for allowing me the forum to guest post here at the Construction Law Monitor.  When I was thinking of a topic, I realized that mechanic’s liens in Virginia are extremely powerful.  Their power is particularly helpful when, like now, the construction economy is not exactly booming.

    Why do I say that a lien in Virginia is so powerful?  Two reasons, 1. the lien (with one exception) takes priority over even a first mortgage or deed of trust, and 2. a lien in Virginia (assuming it is filed correctly) is perfected and enforceable as soon as it is recorded.  This one two punch creates a situation in which a construction subcontractor can suddenly move from a position of vulnerability to one of strength.  Once the lien hits the courthouse, and notice goes to the Owner, things generally start to happen:

    1.  The bank gets nervous; 2.  The Owner begins to fret and squeeze the General Contractor to see why the sub has not been paid; 3.  The subcontractor’s construction attorney hopefully gets a call; and, importantly 4.  Money starts to flow (or at the very least the General Contractor is forced to file a bond with the Court to assure that the sub will be paid).  In short, until you, a construction professional who is owed money, are presented with the “fish or cut bait” scenario of having to file a suit to enforce the lien or stick with a breach of contract action, you are in the driver’s seat.  Of course, this assumes that you and your attorney have properly met the picky requirements of a Virginia mechanic’s lien.

    The second point is equally important.  The fact that a commercial subcontractor or supplier does not need to perform any additional steps, aside from recording the lien, in order to perfect it means that your lien not only survives bankruptcy if filed prior to the Owner’s bankruptcy filing, it means it can be a secured lien even after bankruptcy of the Owner.  All that the bankruptcy does regarding your lien is to stop the clock on the 6 month filing deadline for the length of the stay.  I have seen more than one instance where having this secured position in a bankruptcy is the difference between pennies on the dollar and almost full recovery out of the bankruptcy.

    In short, don’t wait to file your lien in hopes that you will get paid.  While I always prefer that construction professionals work things out short of litigation and enjoy representing construction pros in and around Richmond because they generally do so, now is not the time to let your lien rights lapse.  Any General Contractor or Owner that balks at your exercising your lien rights is not likely to pay in any event.  Those Owners and General Contractors that see your actions as “just business” are more likely to be folks for whom you will want to work in the future.

    In sum, a mechanic’s lien, filed in a timely and proper fashion, can be, and generally is, a cost effective and powerful collection tool for Virginia contractors.  Construction professionals in Virginia should not see such liens as a last resort, but as one of the arrows in their collection quiver to be used when an Owner or General Contractor (with or without fault) fails to pay them in a timely fashion.

    Posted in:     Collections, Construction Contracts, Filing Requirements, From The Experts, Mechanics Lien  /  Tags: , , , , ,   /   5 Comments
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