Posts tagged: construction attorney

You have created a game plan for a long-anticipated and labor-intensive home improvement project. Now, the time has come to hire a general contractor to manage the project, including establishing a timeline, producing a budget, and recruiting independent contractors to handle the specialized requirements of your project. Working with a construction attorney can answer the questions you have concerning your home improvement project. Although we answer a wide variety of questions for clients, one question is critically important to know the answer to because of the legal implications.

Is it illegal to hire an unlicensed contractor?

California real estate law for contractors contains many strict statutes that, if violated, can negatively impact the legal status of both a homeowner and the general contractor working on a home improvement project. In California, a homeowner is prohibited from hiring an unlicensed general contractor, or any type of contractor for the matter. An unlicensed contractor not only cannot complete a construction project, but the contractor is also forbidden from developing the blueprints for the project as well.

A homeowner can get into legal trouble by hiring an unlicensed contractor, and the contractor faces legal consequences as well.

California business and commercial law makes it illegal for an unlicensed contractor to work on any type of residential construction project that is valued at more than $500. This covers virtually every type of residential construction and home improvement project. The $500 threshold includes the labor costs and the expenses associated with purchasing materials. California has passed a strict law covering unlicensed general contractors and the state consistently enforces the statute. The only exception to the unlicensed contractor law is if a contractor acquires a properly issued contractor’s license during the time the contractor worked on a construction or home improvement project.

Serious Legal Consequences for a General Contractor

A general contractor takes a huge risk bidding on a project, without obtaining a license to work in California. If you are a general contractor that does not have a license and the state discovers your unlicensed credentials, you can face a misdemeanor charge for violating California law. The misdemeanor charge carries a jail sentence of up to six months and/or a fine of no more than $5,000. A general contractor might face additional fines, depending on the type of project and the nature of the work completed. Additional fines can range between $200 and $15,000.

If a contractor gets caught a second time, the legal consequences become much more serious. The contractor must spend at least a mandatory 90 days in jail and pay a fine of $5,000 or 20 percent of the value of the work completed to date. If a judge invokes the 20 percent penalty, a contractor can face a fine that runs into tens of thousands of dollars.

Unlicensed Contractors May Be Required to Return Any Monies Taken

Business and Professions Code Section 7031(b) provides:

Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.

B&P Code Section 7031 was enacted by the Legislature to “protect the public from incompetence and dishonest in those who providing building and construction services…the licensing requirements provide minimal assurance that all persons offering such services in California have the requisite skill and character, understand applicable local laws and codes, and know the rudiments of administering a contracting business.” (See Wright v. Issak (2007) 149 Cal.App.4^th 1116, 1123.) 

If you hired an unlicensed contractor or you believe the contractor may be unlicensed for any reason, you may be entitled to recover all monies paid to the contractor pursuant to Business and Professions Code Section 7031. There are many nuisances to when a contractor may or may not be licensed. If you believe you have hired an unlicensed contractor, contact the attorneys at Alves Radcliffe LLP. There is a one year statute of limitations on these claims and homeowners are advised to seek out legal advice as soon as possible. 

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with an indemnity clause in your construction contract, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.

You thought about building a swimming pool in your backyard for years. The home improvement project adds another amenity to your property, which increases the value of your home. You get to spend countless afternoons relaxing under the warmth of the sun, as well as invite friends and family members over for a day of outdoor fun. The only thing standing in your way of realizing your dream is swimming pool construction defects.

If you are embroiled in a dispute with a swimming pool contractor over the design and construction of a swimming pool, work with an experienced construction attorney who specializes in pool construction defects to ensure you receive every legal protection granted by law. Working with a construction lawyer also educates you on how to handle bad swimming pool construction.

Pool Defects 

Not all defects are readily apparent to the untrained eye and not every blemish amounts to a defect. Common problems with pools include structural cracking in the pool shell, pool engineering problems, cracked coping and tile, lack of sufficient gunite, improperly placed reinforcing bar (“rebar”), and improperly compacted soils. Oftentimes pools are placed on hillsides and require special engineering that may not be adequate to support the weight of the pool. As a starting point, if you are experiencing cracking in your pool and suspect something is wrong, check to see if your auto fill is running continuously or whether your water bills are abnormally high. A construction attorney specializing in pools should be consulted to determine whether the defect is significant and causing damages. 

Follow the Contract

The contract you signed with the contractor includes all the details that are associated with the swimming pool project. The contract should be in writing, reasonably detail the scope of work, and provide for a schedule of payments. When the project starts to move away from the standards established in the contract, refer the contractor to the contract to reinforce your position. For example, if the contract states the contractor is responsible for defects, refer the contractor to the contract to enforce that legal provision. Before you sign any type of contract that is covered by business and commercial law, you should have a construction attorney review it to ensure it includes every legal protection you need.

Leave a Digital Trail

One of the most frequent issues that arise between homeowners and contractors concerns miscommunication. Contractors often get deeply involved with a construction project such as a swimming pool, which can lead to a lack of communication with a homeowner. Although you should establish the standard for responsive communication before the start of a construction project, you can jump-start your interactions by encouraging short daily emails that keep you updated about the status of the swimming pool. Text messages are discouraged because it makes for a more difficult paper trail later to piece together the evidence. 

Adapt to Changes

Sometimes, a bad swimming pool construction project does not involve the design or construction of the swimming pool. A construction dispute can be about not  defects. If your swimming pool project has fallen behind schedule for a legitimate reason and you and the contractor agree to change the timeline, make sure to get it in writing and signed by you and the contractor first. 

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with an indemnity clause in your construction contract, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.

You have invested a significant amount of time and money into a construction project, which means you expect the general contractor you hire to manage the project to complete the project on time and under budget. However, some construction projects fail to meet the standards established by the industry. With the help of an experienced construction attorney, you should learn about the 10 signs that demonstrate that a contractor is negligent.

Substandard Work

The most common sign a contractor is negligent concerns defective, shoddy, and substandard work. The quality of the work completed on your construction project must meet the standards written into the construction contract. If you fail to detail in the construction contract the quality of work that you expect, it will be difficult to prove the general contractor committed one or more acts of negligence.

Inferior Equipment

One look at the equipment used by a general contractor and the team of independent contractors should tell the story about the competency of the crew responsible for completing your project. Failing to use construction equipment that is in mint condition increases the risk of an accident happening onsite. 

Reckless Behavior

A construction site is not a place for workers to engage in reckless behavior, which includes operating machinery carelessly and violating standard safety protocols. You should immediately report any behavior to the project manager that violates construction or real estate law.

Lack of Permits

Before the first step of the construction project is underway, property owners must verify every contractor onsite has obtained the required state and federal permits. The lack of possessing the legally required permits represents a red flag that helps you determine whether you need the legal support of a construction attorney.

Cost Overruns

When you hire a general contractor, you expect to receive regularly submitted financial reports that describe the financial status of your construction projects. Any report that shows a project running over budget is a sign of negligence on the part of the general contractor in charge of the project.

Defective Protective Gear

Every worker on your construction project must wear the right protective gear to prevent an onsite accident. Violations of the standards created by the Occupational Safety and Health Administration (OSHA) are a clear sign the contractor is negligent in managing your construction project.

Visible Defects

From leaky pipes that discharge water to cracks in a structure, you should be able to detect basic defects of a construction project. Hiring a construction attorney during your construction project can help you notice defects.

Not Enough Warning Signs

The general contractor running your construction project cannot prevent every hazard from becoming a safety issue. However, placing warning signs in the right locations reduces the likelihood of an onsite accident costing you both time and money.

Visits from Government Inspectors

A contractor that deals with unannounced government inspections might be a contractor that has a record of violating safety standards. If not addressed, this warning sign can eventually lead to the end of your construction project.

Covering Up Mistakes

Accidents happen on construction sites, and when one happens during your construction project, how the general contractor responds can tell you whether the general contractor should be held legally accountable for the circumstances that led to the accident.

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with an indemnity clause in your construction contract, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.

You meticulously planned every step of a home improvement project. Working with a general contractor has reduced your responsibilities because the team of project managers from the general contractor handles the recruitment of trade professionals, as well as schedules daily tasks. However, there might be one step you should add to your home improvement project.

You should speak with a construction attorney to help you avoid costly mechanic’s liens.

A mechanic’s lien gives trade professionals a tool to protect themselves from property owners that refuse to pay for specialized services and the time put into a project. Most of the steps that help you avoid a mechanic’s lien have one thing in common.

Communication.

Let’s look at some basic principles that can help you avoid a mechanic’s lien.

Prequalification Process

One of the basics of a construction lien is for the general contractor to get paid what the company deserves. You can avoid the hassle of a mechanic’s lien by putting the general contractor through a prequalification process. Determine how the general contractor handled past payment practices before agreeing to a payment plan. You also need to know how a general contractor handles a missed payment.

Preliminary Notice

What frustrates a property owner more than just about anything concerning a construction project is unexpectedly receiving a mechanic’s lien. You avoid this issue by requiring the general contractor to ask for preliminary notices from every supplier and independent contractor. A preliminary notice provides you with the names of each trade professional, as well as what you owe each trade professional.

Asking for preliminary notices is one of the most important principles of real estate law.

Joint Checks

Issuing joint checks represents an effective strategy to avoid a mechanic’s lien, as well as prevent a contractor from receiving two payments during the same pay period. Issuing a joint check requires all parties to endorse the check before a financial institution releases the funds. If a trade professional and the trade professional’s supplier receive a joint check, the supplier must endorse the check before the trade professional can cash it.

Payment Bond

Taking out a payment bond removes the legal liability from your property to address a compensation issue. A payment bond transfers the inherent risk of receiving a mechanic’s lien to the issuer of the payment bond. If the general contractor, primary supplier, and independent contractor do not get paid by the payment deadline, each party has the right to make a claim against the payment bond.

Make Full Payments Before Every Deadline

One of the most important pieces of advice given by a construction attorney to a client does not involve legal jargon. You can avoid receiving a mechanic’s lien if you issue full payments on time, every time. Issuing full, timely payments is the most effective way to avoid a mechanic’s lien.

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with an indemnity clause in your construction contract, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.

If you run a company in the construction industry, you understand that disputes are a part of doing business. Disagreements between property owners and contractors, contractors and trade professionals, and subcontractors and suppliers can pop up at any time. The question is not will your construction company experience a dispute down the road. Instead, the question is how will you handle a disagreement with a supplier, subcontractor, or property owner?

The short answer involves hiring an experienced construction attorney who has successfully handled a considerable number of legal disputes. A construction lawyer can help you sign a legally valid contract that clearly defines every factor that goes into a construction project. Working with a state-licensed construction attorney also ensures your company receives legal protection against any invalid disputes.

One of the greatest benefits of hiring a construction lawyer is to have legal representation when the time comes to implement one of the main methods to settle a construction dispute.

What Options Do I Have to Settle a Construction Dispute?

You have four methods to settle a construction dispute: negotiations, mediation, arbitration, and litigation. It is important for you to understand the pros and cons of each method.

Negotiations

The first step to settle a construction dispute involves direct negotiations between both parties. Instead of costly litigation, negotiations can end a dispute without it ever seeing the inside of a courtroom. Your construction attorney submits an offer, which is countered by the lawyer representing the other party. Even if negotiations do not resolve the dispute, at least both parties understand what are the major points of contention.

Mediation

Mediation typically follows failed negotiations. Held before an unbiased third party, mediation represents a confidential legal process where both parties agree to meet and work out their differences with the help of a third party. Mediation is a common resolution process for many business and commercial law cases.

Arbitration

Considered a faster and less costly legal option than litigation, arbitration is the preferred method of resolving disputes for many construction contractors. Depending on the extent of a dispute, arbitration can be held in front of one or as many as three arbitrators. The arbitration process unfolds in a similar way as a civil trial, with discovery a vital part of the process. Both parties exchange evidence and the statements made by witnesses. Arbitrations decisions are binding, which means if you choose this legal option, you must live with the decision made by the arbitrator or arbitrators.

Litigation

Do you need a construction attorney for a contractor dispute? The answer is an emphatic yes if your dispute reaches the litigation phase of the legal process. The advantage of litigation over arbitration is although a judge issues a decision, you have the right to appeal the decision if it does not go in your favor. However, the downside to litigation is the process can be time-consuming, as well as you cannot recover court costs and attorney fees.

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with an indemnity clause in your construction contract, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.

Construction disputes can be daunting for all involved parties, whether defendant or plaintiff. As disputes build up to lawsuits or legal action, you face the uncertainty of where you’ll end up. You might find yourself at a negotiation table or in a courtroom. Fortunately, you don’t have to navigate the legal world alone if you partner with a construction attorney.

If you’re facing any of the below situations, now is a good time to find an attorney.

If you’re suing or being sued

Contact a construction attorney or general consultant with construction expertise if lawsuits are involved. Standing alone on any side of a legal battle without a litigation professional can expose you to more damage. If you are the party being sued, a lawyer can identify cross-claims that allow you, the defendant, to sue the plaintiff for an issue related to the main case. If you are the party suing, a lawyer will work to keep your case airtight and fight against any cross-claims the defendant might raise.

Even if lawsuits haven’t been filed and they are merely hanging in the air as a threat, a lawyer can assist you in determining possible liabilities. Not all lawsuit threats manifest, and sometimes they’re merely thrown out to intimidate or force action. If any seem credible or likely to play out, you’ll want a legal expert on your side to get through the ensuing legal battle.

If your negotiations have stalled

The typical first step to approaching disputes is negotiations. If the property owner initiates the dispute, the contractor might offer additional or discounted future services, adjust the project cost, or offer alternatives. If the roles are reversed and the contractor sues because of the owner’s inability to meet payments, a common type of construction dispute faced by contractors, the owner might promise full payment spread out over a longer period.

Sometimes these negotiations work out, but sometimes one or both parties won’t budge and progress hits a wall. A lawyer versed in construction litigation can jumpstart negotiations and help both parties reach a common ground without sacrificing your best interests. In the case the negotiations transform into a lawsuit, a lawyer will be necessary to minimize your risk exposure and give you a higher chance of success in court.

If you’re dealing with a jobsite injury

It’s in your best interests to find an attorney if you’re facing a jobsite injury. These claims can get complicated very quickly when construction workers’ compensation is involved. You can try to keep these disputes out of the courtroom, but in many cases that simply isn’t possible. That’s why it’s important to find a qualified attorney as soon as the dispute begins to intensify. Once momentum builds, you could be dropped into an unfamiliar legal situation with little to no warning.

Regardless of the dispute, if you feel legal challenges could quickly arise, it’s good to have a construction attorney on your contact list. Preparation can make a huge difference, especially when you’re involved with a major construction project.

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with an indemnity clause in your construction contract, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.

As with all construction projects, pool construction can be privy to complications resulting in legal disputes that need litigation from a construction attorney. Even thoroughly crafted contracts can be challenged. Whether you’re a pool contractor or property owner, it’s a good idea to be familiar with a few of the common legal issues that construction attorneys and general consultants see when construction doesn’t go according to plans. 

More work is needed than anticipated

Before taking a new project, pool contractors inspect the prospective construction site for feasibility. The geographical location and ground slope can impact the pool depth, width, construction materials, and where drainage should be installed. Every detail is necessary to create a pool plan the client approves of, and write a contract that protects the interests of the client and contractor.

However, there is no such thing as an inspection that catches every detail that could impact construction. Some details might not even be perceivable until construction is underway, due to incorrect or incomplete property floor plans or obstructions. A contractor might be halfway through excavating the site when they discover an issue that requires more work than listed in the original project plans.

New developments are to be expected in any construction job, and contractors are prepared to pivot and meet new needs. However, pivoting can sometimes result in additional work that pushes out the project timeline or raises the construction cost. In some cases, additional contractors or subcontractors may need to be brought on. The contract should explain how these events are handled, but property owners might take issue regardless. The dispute could escalate to the point you need to find an experienced construction attorney.

The pool needs repairs shortly after completion

Pool construction is intensive and has many moving parts. A mishap with one part or step of construction could cause ripples impacting later steps of the project, ultimately resulting in a pool that needs immediate repairs. Property owners might raise issues with superficial defects on tilework and grouting, or serious defects that undermine the pool’s wall or structure and could collapse. They might also blame contractors for a newly installed ladder that disconnects from the pool wall.

Standard construction contracts have indemnity clauses that lay out how responsibility is split among contractors, subcontractors, and property owners when construction is impacted by negligence. This helps determine how medical and legal costs are allocated should the pool defects result in injury. This also is a common cause for disputes because property managers and contractors alike could disagree about how indemnity is applied in practice.

There are disagreements about collection

Even if pool contractors and property owners agree about how and when payment is made, construction events that push out the timeline or result in larger costs could change the payment method. The property owner might expect a longer time to deliver while the pool contractor might expect more concise payments. Property owners might change their mind about increased costs and ask for additional services to make up the gap between what they deem appropriate and what they’re charged.

Any pool construction dispute can stir up legal issues, stress, and cost you time and money. If you’re a pool contractor or a property owner facing pool construction disputes, reach out to a local attorney for legal assistance.

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with a pool construction dispute, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.

Imagine this scenario: You’ve hired a general contractor to patch up your roof that has been stripped by extreme weather. While on the job, a subcontractor injures themself and sues you, the property owner. Fortunately, your contract with the general contractor has an indemnity clause that requires the general contractor to pay the subcontractor.

The above is a simplified example of how the indemnity clause can protect you when accidents happen. Often, a construction attorney or general consultant with experience in construction law  is needed to lay out the intricacies of the clause and figure out exactly who holds responsibility for injuries and damage.

What is an indemnity clause?

An indemnity clause determines who assumes responsibility for risk. There are three main parties in a clause: the claimant (the party making the claim), the indemnitee (the party being accused), and the indemnitor (the party taking responsibility for the accused). 

In the sample scenario above, the property owner is the indemnitee, the subcontractor the claimant, and the subcontractor the indemnitor. The clause transferred responsibility to the general contractor, protecting the property manager from legal expenses. Because indemnity clauses deal with the transfer of legal risk, they’re a common type of construction dispute.

What are the different types of indemnity clauses?

There are three main types of indemnity clauses. The broad form of indemnity states that the indemnitor assumes all responsibility for the indemnitee. In practice, this could be a general contractor taking responsibility for damages/injuries caused by subcontractors. In this case, if the subcontractors are explicitly negligent, their risk is passed onto the general contractor.

The immediate form of indemnity is a more restricted version of the broad form, but still relatively broad. The indemnitor assumes all responsibility unless the indemnitee is completely responsible. This means if the indemnitee is partially responsible, the indemnitor still assumes responsibility. In other words, immediate indemnity is “all or nothing.”

The third and most common indemnity clause is the comparative form, which follows common law principles by allocating responsibility to the party associated with the negligent act. The associated party has to be fully responsible for the negligent act, which can stir dispute among parties.

How can you deal with an indemnity clause?

As a property owner working with contractors, get familiar with your contract’s indemnity clause. Keep an eye on your project and look out for unforeseen circumstances. If an indemnity clause is invoked, negotiation or taking legal action on your own could turn a complicated situation into an even more complex tangle of accusations. Seek legal assistance from an experienced construction attorney who specializes in litigation.

Alves Radcliffe, LLP — Construction Attorney

If you need assistance with a construction law dispute regarding identity clauses, call Alves Radcliffe, LLP at 916-333-3375 or send us an email. We have over 25 years of combined experience, and serve clients throughout Greater Sacramento, Northern California, and the San Francisco Bay Area.