As Hurricane Isaac plowed into South Louisiana it decided that it wanted to hang around for a while. Currently the center is just above Baton Rouge, La and has been moving at 6mph all day. Essentially the City of New Orleans has been dealing with 40mph + sustained winds for the past twenty-four hours. The rainfall is now the biggest factor because the large amounts have no where to go, therefore flooding is an issue. Weather Channel recently reported over 20″ of rainfall in Audubon Park located in Uptown New Orleans.
Baton Rouge, Louisiana’s capitol city, is being hit hard with wind and rain. The majority of Louisiana’s population lives in the I-10 / I-12 corridor. These are the areas that have taken on Isaac with full force. Plaquemines Parish has probably the worst damage thus far where waters of the storm surge rose above the levees. Other hard hit Parishes of Louisiana include, Orleans, Jefferson, St. Bernard, St. Tammany, Tangipahoa, St. John, St. Charles, Ascension, Livingston and East Baton Rouge. Residents of these Parishes will be out of the weather soon but the trouble will continue with the clean up and lack of power. Entergy has its work cut out when it commences restoring power to the millions living in the area.
Thursday and Friday, will be days of cleanup and restoring life back to normal. Assessment of damages will be critical to a swift and full recovery. More to come from ConstructionLawMonitor.com…
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.
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.
Just last week the Internal Revenue Service (IRS) announced a plan to help homeowners who have corrosive Chinese Drywall in their home with tax breaks on items that have been destroyed as a result of the Drywall.
IRS website gives a good break down on the relief effort affecting repairs for drywall losses from drywall installed between 2001-2009. Entitled Revenue Procedure 2010-36, the procedure covers the following:
- Homeowner must pay for the repair of the loss and make the claim in the year of payment.
- You cannot make a claim that has been paid for by insurance or reimbursed by another source.
- If the homeowner does have a pending claim or suit they can claim reimbursement for 75% of the unreimbursed amount.
Many news sources have reported on this same topic: New York Times, New Orleans Times Picayune.
This is the first major federal effort to help compensate homeowners with tainted drywall. The drywall has affected homeowners in many states with the most concentrated in Florida and Louisiana.
Ken Simonson, the chief economist for the Associated General Contractors of America, doesn’t have good news for the construction industry as the challenging year 2009 drags into its 3rd Quarter.
According to Simonson, the commercial construction industry forecast remains grim “at least through 2010.”
For contractors, suppliers, and other construction professionals throughout the nation, this means that good record-keeping and collection practices remain important.
Almost one year ago, Wolfe Law Group posted an article on its Construction Law Monitor after Ken Simonson reported that 2009 would present economic challenges to contractors.
Now more than ever, the article stated, contractors should consider the benefits of a construction or mechanics lien. The article went on to state:
As soon as the construction project comes to a halt or payment is late, contractors, subcontractors and suppliers should rush to file its construction / mechanics lien to protect its interest in the property. Construction liens are available in virtually every state, and works to transform the project job site as a sort of “collateral” to the contractor for its payment.
The time available to file a construction lien is not indefinite, and the legal requirements should be followed to the letter. However, when filed correctly, a construction lien can help your company recover payment for its project.
Although the stimulus spending will be cause for some optimism in the construction industry, it appears economic struggles will stick around into 2010. And the recommendations of Wolfe Law Group in 2009 are repeated today.
This article was originally posted on Express Lien’s topic-specific Construction Lien Blog.