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15Sep 2022

Construction projects require significant attention to detail to ensure quality control across the board. There are many layers to a construction project, so it’s important to be sure every member of your team is in sync with the details and expectations of the job.

If a homeowner feels a job wasn’t done up to standard and files a claim over defects such as roofing issues, improper materials, or, even worse, a personal injury, then your reputation can immediately go out the window. Florida construction contractors, sub-contractors, material men, and workers bring important experience to every project and one mistake shouldn’t upend a career of good work. Still, that’s the reality of the business at times, so it’s imperative that the whole construction team put time and effort into avoiding defects.

1. Document and review all contract details

The contract process should lay out the expectations of the job. This is an opportunity for the construction workers and property owners to put forth any specifications for the job at hand. This can include expectations of the materials used, present problems that need to be remedied, and other necessary details.

You and your team should be aware of every relevant detail in the contract. Some contracts may seem standard and every contract will include some standard language, but a thorough review may find that the contract requires specific products or materials. Any unusual request in a contract should be acknowledged and adhered to in order to avoid issues down the road.

All efforts to follow through with contract details should be documented, and any reason contract details cannot be honored should be taken up with the property owner prior to any final decisions being made. Even if a contract detail is unreasonable or unviable in your project, you are still legally bound to it until the other party agrees to alter the contract.

2. Don’t be afraid to start over

Nobody on a construction site should be cutting corners. It can be tempting to get the job done early to satisfy the customer or to let a small error go by covering it up. Unfortunately, the costs of a defect being caught later in the process are exponentially greater than just scrapping the part of the project where the error is and starting it again.

The risks to your finances and reputation are too significant to try and get away with cutting corners. Even if the property owner isn’t knowledgeable about construction and the project at hand, it seems every defect eventually comes to light. Take the time to get it right at every step.

3. Constantly review the project

Once the work starts there’s this itch to keep going and get the job done. That’s because construction workers are some of the hardest workers in America. They’re literally building our country.

With that said, sometimes it’s good to slow things down and review all recent work on the project. This can be done by one manager or a quality control team established at the beginning of the project (the more eyes on a project the better). This could be something members of the quality control team do at the beginning and/or end of every day or it can be done as a phase of the project is completed.

However your team decides to do this, it’s important to be consistent and not be afraid to take a pause to ensure nobody is building on a mistake. Mistakes have a way of compounding on construction projects.

4. Call an attorney

You shouldn’t be subjected to claims against your hard work that are malicious and invalid. Any construction team should have an attorney they know and trust to write and review contracts and to step in when you’re accused of wrongdoing.At Florida Construction Law Group, we represent both construction workers and property owners in defect cases. We understand the law and when a defect is actually present vs. when a claim is misguided. Contact our team if you need help taking care of a claim.

03Aug 2022

Once you’ve chosen a piece of land for a new construction project or decided to add a new property to an existing plot, it’s time to start preparing the land. Construction is an expensive and time-intensive project, and a little bit of proper preparation ahead of time can save hundreds of thousands of dollars in unnecessary work.

Of course, the best-laid plans can still result in legal issues. If you’re in that situation now, call Florida Construction Law Group at 305-227-4030 to find out how we can help.

Conduct a Survey and Evaluation

First, oversee a thorough survey and evaluation of the land. This gives you an understanding of any issues you may run into based on the environment and layout of the land itself. Identifying potential issues and boundaries can save a lot of time and money down the road.

Have a Thorough Plan and Timeline

By the time you’ve gotten to this stage, you should have a comprehensive plan for the construction project and a timeline that specifies clear milestones. With a completed survey, you can determine what you’ll want to be removed from the land—trees, shrubbery, and so on—and what you’ll want to keep. This step involves a team of designers, architects, and contractors. Each of these groups brings a separate skillset to the table, ensuring that potential concerns or problems aren’t overlooked.

Verify Access to Utilities

An important part of this process is verifying that the building will be able to be connected to water, electric, gas, and sewer service. If you’re building an additional structure on land that has an existing structure, you may assume that the second building will enjoy the same access. This isn’t necessarily the case, and you’ll want to double-check before you start. You may also want to verify that the property will be able to access Internet service.

Clear the Land

Construction companies spend a substantial amount of time getting property ready for building, and a big part of that is debris removal. Rocks, trees, shrubs, dirt, and other unwanted materials must be cleared away before building can begin. Before this happens, check with local waste removal laws to find out how you have to dispose of natural materials. Failing to adhere to local laws could result in hefty fines if you dispose of waste inappropriately or in the wrong area.

Verify Local Laws and HOA Requirements

If the property you’re building on is part of an HOA or any other association that may affect what you can do with your land, have an attorney go through your HOA covenants and restrictions. Many have specific requirements about what you can and cannot build on your land. Whether you’re building on the previously untouched property or adding an accessory structure, make sure you’re actually allowed to do so without getting hit with fines.

Facing Issues With a Contractor or Construction Company? Choose Florida Construction Law Group
You have important goals you want to accomplish with your property. Make sure that legal issues don’t keep you from reaching them. Schedule a consultation with Florida Construction Law Group now by calling us at 305-227-4030 or filling out our online contact form.

30Jun 2022

Putting together the large puzzle pieces of a construction job takes expertise and experience. When starting a project, there’s a blank slate that needs to be filled with expert vision. Construction workers need to project what materials and tools are needed to complete the job at hand.

So, what happens when the projection is off and materials are leftover at the end? The answer actually depends on a few specific circumstances surrounding the job and the contracts signed. The owner of the property/building being worked on does not automatically assume ownership of the materials nor do the contractors doing the work.

Owner provides materials

This is a rare case, but it’s worth clarifying before we get into more complicated situations. If the owner of a property who hires contractors to work on their property provides all materials, those materials will belong to the owner unless otherwise noted. Contractors are more likely to seek a supplier on their own rather than relying on the party who they are doing the project for.

If any of those materials are leftover and no payment has been made by the contractor(s) to take legal possession of the materials then materials should be left at the project site. In the rare case that owner sells all materials to the contractors then the contractors have the right to take those materials with them for use on future projects.

Fixed-price contracts

When two parties enter into a fixed-price contract, this cost will cover the price for the completed project. This means the materials and tools needed to complete the job must be provided exclusively by the contractors working on the home and will not belong to the owner who hired them.

Fixed-price contracts can be tricky because it requires both parties to be more precise. If an owner pays for a large job and the contractors are able to complete the job in less time with fewer materials than originally thought, the owner will be out the extra money. If the contractors believe the job can be completed with a limited amount of materials but end up needing additional materials to complete the work, they lose out on the extra costs of the materials. This creates a smaller margin for error.

Materials provided but not paid for

Contractors and suppliers are likely to build relationships over the course of work – leading to cases where contractors will order materials without paying upfront. Because contractors will generally order more materials than needed to cover for any mistakes or unexpected changes in the project, excess materials may be uncovered at the end of the job.

When this happens, Florida laws specifically outline the repossession of materials not used. In this case, the party who provided the materials has the right to repossess any unused materials that were never paid for. The repossession of those materials prevents the supplier from placing a lien on any property, tools, or materials in order to secure the unpaid amount.

Leftover materials are negotiable

When a party involved in the project has a direct interest in the leftover materials there’s always room for negotiation. Property owners have an interest in excess materials because there’s a chance that damage and repairs down the line will require them to have matching materials to properly patch any issues. Contractors have an interest in excess materials because they can be used at future job sites.

As they say – there’s always a price. Don’t be afraid to negotiate a fair price on excess materials if you feel they’re needed. There is no legal boundary unless neither negotiating party has a legal claim to the materials at the time of sale.At Florida Construction Law Group, we know the statutes that protect your hard work and the materials you need to complete the job. Contact us and make sure you’re protected from potential liens and other issues that can arise at the end of a job.

15Jun 2022

At Florida Construction Law Group, we understand the importance of construction projects for families, businesses, and communities. These contracts are the backbone of projects that shape the way Florida looks, feels, and welcomes people from outside our great state.

Unfortunately, there are many hands involved in construction contracts that could lead to issues with properly completing the contract. Some of these are unintentional while others are pure negligence that can halt a good project in its tracks.

Failure to properly execute the contract could result in a construction loan foreclosure. Most people think of foreclosures in regard to homes when mortgages aren’t fulfilled, but construction loan foreclosures are quite common in the construction industry. It’s important to know the causes and consequences of any involved parties failing to do their part when a construction loan is present.

Causes of construction loan foreclosures

We previously wrote about certain situations that can result in foreclosure. This is not too dissimilar from a normal property foreclosure in that the foreclosure can result from any failure to fulfill the duties within the contract.

While mortgages have a set payment schedule, construction loans often rely on “draw requests” which means a party in the agreement can request payment once a certain benchmark is completed. In this case, borrowers don’t have access to the full funds upfront but instead get funds as needed throughout the course of the project. These draw requests are the most common cause of foreclosure.

Causes of construction loan foreclosures include:

  • Failure by the construction lender to pay a proper draw request after the completion of a benchmark
  • Project benchmarks aren’t reached in a timely manner (or at all) as detailed in the terms of the loan
  • The borrower fails to secure the funds necessary to pay the loan
  • The builder fails to sell or rent the property/project, resulting in an inability to pay off the loan

These and other conditions can result in foreclosure. If you suspect any of these conditions are present or may be possible soon, it’s important to take steps to mitigate the issue and the risk of foreclosure.

Consequences of construction loan foreclosures

A construction loan foreclosure will result in the lender seizing the property and stopping the project in its tracks. This means wherever the project is, the lender can take control and could then decide to sign with a different contractor to finish the project or sell it entirely to wash their hands of the situation (which is the most common result).

In order to do this, the lender has to provide proper notice to contractors under Florida statute 713.3471. This means there should be time and negotiation prior to any final actions that result in foreclosure. The statute exists to protect contractors who are actively and continuously working on a project from having funding pulled out from under them without due notice. When contractors receive this notice, it’s important to secure the project and halt work until the situation is resolved.Florida Construction Law Group has extensive experience in both prosecuting and defending construction loan foreclosures. Whatever side you are on the deal, we can help you sort through it. The best result is to contact us and resolve the dispute before litigation and foreclosure occur.

04May 2022

Every construction project comes with plenty of applications, negotiations, and if we’re being honest, too much paperwork. It can be exhausting going through the motions of every project, but the contracting process is just as important as the work itself. One key step is ensuring the contractors and subcontractors doing work on the project actually have the necessary licenses and registrations to do the work on each project.

Recently, in ABA Interior Inc. v. The Owen Grp. Corp, the courts ruled the failure to do so in Florida renders contractors ineligible to do and be paid for the work. In this case, ABA Interior signed as a subcontractor with the Owen Group to do work on a commercial project. Throughout the course of the work and when the work was completed, Owen Group paid ABA for the work but stopped payments once the company realized ABA had not obtained the proper registrations (specifically a certificate of competency in Palm Beach County). The court also ruled ABA gave up its right to litigation by failing to comply with the subcontract agreement.

This case highlights the major risks of failing to be thorough in your construction contracts. Soon, the process will become simpler when almost all licenses go through the Florida Department of Business & Professional Regulation (DBPR). The change doesn’t take effect until July 1, 2023, though, so it’s imperative that every party involved in the process follows any local ordinances on construction contracts.

Not every county requires you to have the same licenses. In the case highlighted above, ABA failed to receive the proper certificate in Palm Beach County but attempted to subvert this by filing in another county court. The court ruled it’s about where the work takes place, so you should check with your county to make sure you have the proper licenses before committing to or starting any work. If you’re unable or unwilling to meet those requirements, you are allowed to negotiate a contract that skips certain license and registration requirements.At the end of the day, the best way to protect everyone involved is to acquire all proper licenses, whether you’re a general contractor, subcontractor, or any other worker who could potentially get involved in the work on a construction project. The right construction law attorney can protect you and your work. At Florida Construction Law Group, we know Florida law. Contact our offices today and get your work started and protected.

04Apr 2022

Before we dive into this subject, we want to stress the importance of coming to a mutual agreement whenever you’re doing work or having work done. Define the terms, understand the terms, read the terms, and sign on the dotted line.

With that said, we understand situations arise where two parties negotiate and come to terms, but fail to secure final signatures before work starts and, in some cases, before work is completed. We want you to understand what is likely to happen when this situation arises and what you can do about it.

Communicate immediately

The moment you realize a contract was never signed, it’s important to get all parties involved in the loop and make them aware of the error. Doing so allows everyone to start the process of correcting the error, and it will start the clock on all necessary actions to remedy any issues.

When you contact the other party, the situation may resolve itself quickly by simply resharing the contract, double-checking the details, and signing off on the deal.

Gather all documentation

After everyone is aware of the situation, you should look back at all communications about the agreement and make sure you have everything documented and secure. This becomes increasingly important should the involved parties fail to agree on what the final contract included.

What’s important to understand is that a signature is not required for a contract to be enforceable. Verbal contracts can be legally binding in Florida, but only if an agreement is reached and defined clearly within legal standards. This means if all involved parties received and reviewed the contract but failed to sign it, it’s likely still going to be enforceable.

Documentation will be important because if there are multiple versions of the contract, one or both parties may insist a version that favors them was the final agreement. Document everything and be sure to take note of dates when communication took place and the manner of that communication.

Stick to the original agreement

This occurred in the case of E-21 Engineering INC v. Steve Stock & Associates. A subcontract was agreed to but never signed, and one of the parties attempted to go back on the deal, noting the lack of a signature. A costly legal battle ensued, ending with the courts determining the contract remained enforceable despite the lack of a signature.

It’s important to define what the original agreement was and stick to your side of the deal. Any attempt to alter details of the agreement may be declined by the courts or could be viewed as an admittance that the entire contract is failable. This could mean your work or money goes to waste as an entirely new agreement would need to be drafted.

Contact your attorney

As with the E-21 case mentioned above, you could find yourself in court defending the agreement. Don’t go into this process without your attorney by your side.

At Florida Construction Law Group, we know Florida law and can defend your rights when these mistakes arise. Contact us right away and let us make this right for you.

15Mar 2022

Construction jobs, no matter how big or small, can be complicated and require extensive documentation and payment. It’s important for both the property owner and the contractors working on the property to protect themselves in case something goes wrong on either end of the project.

In Florida, a construction lien is a tool to ensure the proper payment for work and materials is done fully and in a timely manner. For contractors, the lien allows them to claim real property or materials until the agreed-to payments are made fully. It’s important to note government property is exempt from construction liens, so if your project relates to government work, you will not be able to use a construction lien to ensure payment.

Claim of Lien

You will need to file a Claim of Lien if you intend to use this tool to secure your project. Your claim must be filed with the clerk’s office within 90 days of the final day work or materials were furnished in the project in question. Once the claim is filed, it will need to be served to the owner within 15 days.

Your claim needs to be thorough and include all documentation of who worked on the project, when and where the work was being done, when payment was due, and how much payment is still owed.

Contest of Lien

Once a claim has been filed, it is valid for one year unless the lienor (the party who claims the lien) files a lawsuit to extend the lien beyond the one-year period. The timeline completely changes, however, if the owner files a Contest of Lien during the initial one-year period. At that time, the lienor has 60 days to formally file a lawsuit to enforce the lien.

An owner can contest a lien if they believe and have proof the lien is unenforceable because proper and timely payments have been made to all contractors as previously agreed to. Owners should always file a Release of Lien (or require the contractors to do so) when a project is complete and payments are completed and documented. A Release of Lien blocks contractors from filing a Contest of Lien once proof of payment is provided. A Release of Lien cannot be filed in advance, because Florida laws prevent contractors from waiving their right to lien property in order to secure payment.

Selling under lien

An active lien on property changes how the sale of the property will work. If you had work done with the intent to sell, you will need to be cognizant of these changes. You CAN sell the property, but the sale will need to stipulate how the lien will be taken care of. Are you using the funds in the sale to pay off the lien? Is the buyer taking responsibility for the lien? Whatever the case, the lien must be satisfied in order for any sale or transfer of the property.

Protect your hard work

Whether you’re a contractor looking to claim a lien or an owner looking to protect your property, Florida Construction Law Group is here to help. This can be an expensive and exhausting process, so you should not take it on yourself. Contact us today to get your case started! Our senior attorney, Ray Garcia, has received the highest rating available from Martindale-Hubbell!

20Feb 2022

Buying property and deciding to build it from the ground up is a thrilling proposition. It feels like a massive undertaking, but when the final product is ready, you will have something that feels unique to you in a way that only a new construction project can. This is true whether you are building your home, your office, your vacation spot, or even a bridge.

However, it is important to enter into the process with realistic expectations. Construction projects are labors of love, built on the back of teamwork. They require a lot of communication, coordination, and flexibility – despite what you might have heard. Here are 4 myths about construction projects that you should ignore, and the truth behind them:

Everything Will Go According To Plan

Let’s start here. On even the best of construction projects, there were days that didn’t go well, materials that weren’t available, and compromises that had to be made. Think of entering a construction project like charting a course through unknown waters. Things are going to go wrong, and not everything can be prepared for in advance. As long as you have a good team all working together towards a unified goal, you will get there in the end.

They Can Speed Up as Necessary

No, a construction team can not just “work harder” or “speed up” to get something done in less time. Construction is an intricate work that often requires things to be done in a very specific order. The crew will work as quickly as they can, but things take time – sometimes more time than you expect.

The Price Will Never Change

If you have to make concessions or the size of the project expands, the budget required to make it is going to expand too. Your starting price is generally a good estimate, but it does not mean that is all you will have to pay. As the project changes in practicality, the price will as well.

It Should Take the Same Time as Another Project

Spending any amount of time comparing one construction project to another is time wasted. Every construction project is unique, with it’s own team, challenges, and unique location. The same project might get built quicker in the summer than in the winter. Understand that you have your own project, and avoid comparing it to others.

Get the Help You Need

Construction projects are massively rewarding, but they are also a major undertaking. Going into them with an open mind is the best approach. For help dealing with any construction project disputes, contact the Florida Construction Law Group today! Our senior attorney, Ray Garcia, has received the highest rating available from Martindale-Hubbell!

21Jan 2022

The Florida construction industry is governed by contracts- between project owner and general contractor, general contractor and subcontractor, and between any of these parties and a third-party provider such as a materials supplier. If a breach of contract occurs, two types of damages are generally available if the plaintiff prevails: direct and consequential. This blog outlines the nature of each type, the differences between them, and what you need to know about their potential impact on your company.

Direct Damages

These damages are intended to compensate the plaintiff for losses directly related to the breach. Unpaid invoices, substandard workmanship or materials, and costs associated with completing unfinished work or repairing defective construction are examples of direct damages.

Consequential Damages

Florida’s Uniform Commercial Code defines consequential damages as a foreseeable and direct consequence of the construction contract being breached. Some examples include lost profits, property value reductions, and loss of bonding capacity. Under Florida law, these damages can be recovered unless they are waived in the contract.

A plaintiff can recover consequential damages in two different ways. They are:

  • A claim for compensation based on actual and proven damages
  • Acting upon a liquidated damages clause in the original contract

What are Liquidated Damages?

It can be difficult to assign a dollar value to actual consequential damages, so construction contracts often include liquidated damages clauses. Using these clauses can save time and money by assigning a specific dollar value to each day that passes between the contract’s substantial completion date and the date the job is actually completed. 

Courts will only enforce liquidation clauses if the anticipated damages are reasonable, so as not to act as a penalty. Overly burdensome estimates are unlikely to be collected. If the breach was caused by the death of the contractor or subcontractor before the work was completed, liquidated damages are not recoverable, though actual consequential damages may be pursued.

Precluding Consequential Damages in a Construction Contract

Many Florida construction contracts are designed to exclude recovery of consequential damages. Other agreements contain clauses stipulating that the only recoverable damages are liquidated ones. 

The contractor should demand a limit on its liability if the project owner does not remove clauses pertaining to actual or liquidated consequential damages. An acceptable cap is a percentage of the contract price or the profit that the contractor is expected to make from the job. Without one, bonding companies may not underwrite a performance or payment bond, as a contractor could tender a proposal valued at (for example) $5 million and end up facing consequential damage claims worth much more.

Understanding Consequential Damages is Critical 

It is crucial that all parties to a construction contract understand the impact of consequential damages clauses. If the financial consequences are not capped, they can cripple or even end an otherwise thriving business. If you have questions or need a contract drafted or reviewed, contact the Florida Construction Law Group at (305) 227-4030.

03Dec 2021

A construction loan is distinct from a mortgage loan, which is what many homeowners are most familiar with. Once a house has been built and the certificate of occupancy obtained, the homeowners need to secure a mortgage loan (unless they can pay fully in cash). Before that point, future homeowners typically need cash up-front to begin construction. The arrangement between a lender and borrower to exchange money for construction expenses is referred to as a construction loan

Two Types of Construction Loans

Most construction loans are classified as either construction-to-permanent or construction-only. Of these, many more construction loans are classified as the former. Construction-to-permanent loans morph from a pure construction loan to a traditional mortgage loan once the structure is completed. 

Construction-only loans generally have higher interest rates than traditional mortgage loans, though the rates somewhat align with prime rates. The main reason for these higher rates? Lack of collateral. A mortgage lender has the actual house or building to seize if the borrower stops making payments. A construction loan doesn’t offer much in the way of collateral, which is why the lender usually makes routine disbursements (draw schedule). However, the borrower pays only interest payments during construction.

Construction Loan Foreclosures

For many reasons, construction loans are more susceptible to foreclosures than traditional mortgage loans. One reason is that more parties are involved. While a mortgage involves the borrower (property owner) and lending institution, construction loans involve lenders, borrowers, contractors, suppliers, and subcontractors. The more parties involved in a monetary transaction, the more likely a conflict or miscommunication will occur. 

Conflicts between parties to a construction loan can either result in or arise from draw schedule disputes. The lender typically disburses a portion of the principal upon achievement of certain milestones, such as appointing a contractor, setting the structure’s foundation, or pouring concrete. Draw conflicts ultimately result in non-payment, which is the singular catalyst for foreclosure.

Fortunately, the terms of a construction loan are generally more flexible than those of a traditional mortgage loan. That often makes it easier to work with other parties outside of the formal process of foreclosure, which is the most expensive option. Sometimes, however, foreclosure is all but inevitable. 

Florida Construction Law Group is well-prepared to defend against or prosecute a foreclosure action. We have years of experience navigating the nuances of construction loans. Whatever the nature of your construction dispute is, we can help you find a resolution. Call our firm today at (305) 227-4030 to discuss your options.

23Nov 2021

It’s been said that the “best-laid plans of mice and men often go awry.” In other words, even the most meticulously put-together plans sometimes need an audible. Anyone who’s been involved in a construction project before understands exactly how that adage plays out during the process. Sometimes, the most drastic changes lead to what’s called a “change order.” 

A change order is something that owners generally despise and contractors generally favor. Why? Because a change order is a formal amendment to the original construction contract that often adds time—and money—to the project. It occasionally decreases the labor, services, or materials ordered in the original contract, but that is not the norm.

Project owners and developers do not enter into a change order lightly; more often than not, they will try to convince contractors and subcontractors to informally add the changes to the project scope. Other times, owners or developers will try to make the case that the “change” was actually included in the scope of work all along. Contractors, for their part, might argue that they never agreed to a specific price in the original contract. 

Regardless of either side’s argument for or against a change order, these situations often cause such disagreements: 

  • Unreliable labor (subcontractors that do not show up as scheduled);
  • Specifications in the original contract are inaccurate or incomplete;
  • Raw materials were either unavailable or delayed in getting to the site;
  • Unrealistic timelines and/or cost; and
  • Any unforeseeable hurdles (like consistently bad weather).

Ways to Avoid Needing a Change Order

Many times, the disagreement over whether or not a proposed change actually necessitates a change order is more disruptive than the change order itself. If a change order is clearly necessary, then there is little sense delaying the inevitable. Thus, the more productive activity is not to necessarily avoid a change order, but improve the process for deciding on and implementing a change order.

Some ways to improve the change order process include: 

  • Drafting a “change order directive” that comprehensively lays out the process for implementing a change order in your project;
  • Defining the scope of work as clearly as possible;
  • Including a right-to-audit clause;
  • Choosing optimal data management and communication software; and
  • Retaining an attorney at every stage of the change order process. 

Yes, that means having an attorney help draft and look over your construction contracts before you sign anything. Change is inevitable, but you can control how you handle it. Contact our firm today for proven construction legal counsel.

25Oct 2021

Traditionally, the design-bid-build project delivery method was favored by private and public owners. This offers cost-efficient decisions at two major points in the project. Another project delivery method that’s taken shape over the past few years is the construction-manager-at-risk (CMAR) method. The CMAR project delivery method, in short, provides the same opportunities for cost-savings while providing a single point of contact for the owner or developer. 

How the CMAR Project Delivery Method Works

Construction project owners commonly develop requests for proposal (RFPs) for both the CMAR and design at the same time. However, most owners interview and select the CMAR prior to selecting the project’s designer. If the CMAR agrees and executes the pre-construction agreements, he or she may assist in the designer selection. An experienced CMAR may also suggest designers who would be good fits for a particular project. With this project delivery method, owners and developers are often free to select the designer on desired criteria—which may or may not be the lowest responsible bid.

After the chosen designer agrees to the other major pre-construction project, the CMAR determines the Guaranteed Maximum Price (GMP). The GMP is arguably the most attractive feature offered by a CMAR project delivery method. In most cases, the CMAR assumes all financial liabilities exceeding the GMP threshold. There are occasionally exceptions to this rule—most notably change orders. CMARs often include wiggle room for contingencies in their service price. 

During construction, the CMAR essentially acts as a consultant to the owner or developer. Because the CMAR assumes most financial obligations exceeding the GMP, he or she is keen to keep costs down. The owner or developer can therefore enjoy a less hands-on approach to managing the project while having peace of mind that his or her wishes are being advocated for. 

Potential Drawbacks of the CMAR Project Delivery Method

One major pitfall of CMAR arrangements is that owners or developers often mistakenly believe the construction manager will assume every financial liability exceeding the GMP. Mistakes in pre-construction contracts can result in price overages that must be absorbed by the project owner or developer. 

It’s also important to insert the CMAR at the right time. Having your design team come up with a blueprint without the input of the CMAR could be a huge risk, as the design team may not be willing to make changes the CMAR suggests. At any stage, the owner and CMAR need to be on the same page; not communicating the owner’s input could be catastrophic for all parties. 

Conclusion

In many ways, the construction-manager-at-risk project delivery method is a more cost-efficient way of executing the design-build delivery method. Using the design-build or design-bid-build project delivery method is preferred by many owners and developers, but the CMAR method is often worth considering. Finding the right CMAR and crafting effective contracts is essential for a successful project. 

Our firm helps construction clients implement legally sound contracts and resolve litigation. We can also help with just about everything in between. Call Florida Construction Law Group at (305) 227-4030 to discuss your firm’s legal needs today.

18Sep 2021

The bid process for Florida agencies is much more rigid than the process used for private projects. And, for good reason–taxpayers have the general expectation that their tax dollars will be used as efficiently as possible. The Florida statutes lay out the procedures by which construction or renovation work on public buildings or land should be solicited. The law outlines three methods for gathering bids in the state: invitation to bid, request for proposals, and invitation to negotiate. 

Each method is most applicable in certain circumstances. However, any bid solicitation must: 

  • Be made available to vendors at the same time; 
  • Include the date and time to receive bids, proposals, or replies; 
  • List the date of the “public opening”; 
  • Include applicable terms and conditions of the procurement; and
  • Lay out criteria for determining “acceptability and relative merit” of a bid, proposal, or reply. 

Invitation to Bid (ITB)

A few Florida agencies have the capacity and capability to provide a precise scope of work for interested contractors. Because the agency can work out specifications for this type of bid solicitation, the prices of bids are the dominant factor. In an ITB arrangement, the “lowest responsive bid” will win out. Bidders must include estimated yearly costs for performing under the contract. 

Request for Proposals (RFPs)

If the state agency cannot specifically define the scope of work, it usually sends out an RFP. The RFP is appropriate when the agency can specifically define the “purposes and uses” for the work and identify “necessary deliverables.” Just like ITB proposals, RFPs are available to “responsive” vendors. Because price is not the determinative factor in RFPs, bidders must be informed of other criteria which will be important in determining the successful bidder. Broadly speaking, an RFP will be awarded to a responsive vendor whose proposal is “most advantageous to the state.” 

Invitation to Negotiate (ITN)

Of the three bid solicitations covered in this blog, the ITN option is the most open-ended. Simply put, an ITN is used when an agency determines that negotiations with one or more contractors is most likely to deliver the “best value” for the state. The ITN describes the agency’s overarching goals or desired solution for a problem. Still, an ITN must set forth certain criteria by which the contractors’ replies may be judged. 

Conclusion
The procedure for awarding bids for public construction projects is heavily guided by the Florida statutes. Generally, though, public entities seek efficient use of tax money by responsive, and responsible, contractors. Still, construction firms deserve a fair bidding process. If you’ve encountered problems with a recent bid or want legal assistance to position your firm for success, contact Florida Construction Law Group today. We pledge to work toward efficient legal solutions for you and your team.

26Aug 2021

In Parts 1 and 2 of this series, we looked at instances where Florida prime contractors may become liable for the actions of subcontractors. Generally, prime contractors in Florida are NOT liable for the results of actions undertaken by subcontractors. However, there are a few notable exceptions. 

Sometimes, a general contractor enters into an agreement with a property owner or manager that contains a non-delegable duty. This means that, even though the prime contractor hired a subcontractor to do a certain job or perform a certain aspect of the prime contractor’s job, the subcontractor is not liable for personal injuries caused by the work. 

Who Pulled the Permit?

The legal concept attached to a permit-based non-delegable duty is simple: if a prime contractor pulls the permit for a construction or renovation project, the prime contractor may assume liability for some parts of a subcontractor’s work. Florida case law, however, makes it clear that vicarious liability based on the entity that pulled the permit can only be decided after a fact-intensive investigation.

In Florida, a “qualifying agent” is an entity with the legal obligation to “supervise, direct, manage, and control” the work performed under a construction project’s permit. Florida law generally requires construction contractors to employ at least one (DBPR-licensed) qualifying agent. Work performed by subcontractors, with the knowledge of the prime contractor that hired the subcontractor, may expose the prime contractor to liability. That liability may be mitigated, however, if the subcontractor performed work outside the scope of the permit.

What Does the Contract State?

In some cases, determining whether or not the prime contractor is vicariously liable for the acts of a subcontractor goes to the text of the contract between the project owner and the prime contractor. More specifically, express terms included in the contract may create a contractual obligation for the prime contractor if the prime contractor specifically agreed to perform a task. 

For example, the contract between the owner and prime contractor may create a non-delegable duty for the prime contractor to protect the public from various safety hazards. Even though the prime contractor may have hired a subcontractor, the hazards mentioned in the original contract must still be prevented by the prime contractor. 

ConclusionIn most cases, Florida courts hold that prime contractors and employers are not vicariously liable for the actions of independent contractors/subcontractors. From the writing of the original contract to the prime contractor’s actions during the contract’s performance, however, there are plenty of opportunities to assume liability on behalf of third parties. That’s why it’s so important to hire a Florida construction attorney who is experienced in litigation and contract drafting. We look forward to speaking with you soon!

01Jul 2021

Part 1 of our series on prime contractors’ liability for the actions of subcontractors published last month. The post covered the “meddlesome employer” doctrine, which makes the prime contractor liable for the subcontractor’s actions if he or she becomes too involved in the subcontractor’s work. The meddlesome employer doctrine is an exception to the rule that prime contractors are not liable for the negligence of subcontractors they hire to complete work. 

There is another notable exception to this rule. This exception, which we cover below, is known as the “inherently dangerous activity” doctrine. 

What is an Inherently Dangerous Activity?

Florida case law has largely shaped the commonly accepted definition of “inherently dangerous activities”. As its name suggests, it is a danger inherent in the work the subcontractor has been hired to perform. An inherently dangerous activity is likely to result in physical injury if proper precautions are not taken. That last part is important for prime contractors to understand—there must have been a lack of reasonable precautions taken against the special danger. 

The prime contractor must have known that the danger posed by the subcontractor’s work was inherent in the job duties and obligations. If all pertinent factors are present, the prime contractor might be liable for physical harm caused by the subcontractor’s actions. 

What are some examples of inherently dangerous activities? A few situations stand out. Operating a crane, clearing debris from land by fire or other destructive methods, and dealing with exceptionally high-voltage wires all generally rise to the level of an inherently dangerous activity. 

Situations that Florida courts have held do not rise to the level of an inherently dangerous activity include a tractor-trailer that is parked on the shoulder of a highway but is slightly over the white line and removing tiles from a roof deck. 

Non-Delegable Duty

An inherently dangerous activity faced by a prime contractor is considered a “non-delegable duty”. A non-delegable duty is an obligation that the prime contractor could never legitimately pass off to a subcontractor in the first place. There are other non-delegable duties which ultimately make a prime contractor liable for some actions of a subcontractor. Next month’s blog, Part 3 of our series on contractors’ liabilities for subcontractors in Florida, will focus on two other non-delegable duties. 

A Construction Firm That Has Your Back

The question of whether or not a prime contractor is liable for bodily injury, property damage, or other results of negligence by a subcontractor is often an incredibly complex matter. Florida Construction Law Group’s focus is on helping construction firms and other parties resolve their legal matters and, if possible, help prevent issues in the first place. Call us at (305) 227-4030 to discuss your needs today.

21Jun 2021

Florida law is usually friendly to general/prime contractors in a situation where a subcontractor has acted improperly during a construction or renovation project. This liability divide can—and should—be clearly delineated in the contract entered into between the contractor, subcontractor, and project owner. As is the case with many things in construction law, though, there are exceptions to the rule. A few conditions can lead to a contractor becoming liable for the acts or omissions of a subcontractor. 

‘Meddlesome Employer’ Exception

Several Florida court cases have resulted in a few exceptions to the rule on a contractor not being liable for the actions of one or more subcontractors. Indian River Foods Inc. v. Braswell (1995) cemented the legal concept of a meddlesome employer.

The effect of this and other rulings mean that general contractors can be held liable for the actions of subcontractors if the general contractor becomes too involved in the subcontractor’s work. In court, it must be shown that the general contractor actually interfered with the way the subcontractor performed the work.

In almost every project, the general contractor will perform a certain level of supervision over other parties working on the project. For instance, the general contractor has general obligations to keep the worksite safe. If the level of supervision becomes too high, though, and the subcontractor commits an act or omission that approaches negligence, the general contractor could ultimately be liable. 

A few actions on the part of general contractors that do not constitute a meddlesome employer include: 

  • Ordering the subcontractor to stop or resume work
  • Receiving reports on the subcontractor’s progress
  • Inspecting the subcontractor’s work
  • Recommending or suggesting ways for the subcontractor to perform work
  • Prescribing alterations

Similarly, it can be shown that the general contractor did not substantially control the work performed by the subcontractor based on the party that supplied labor, tools, and equipment. A subcontractor that handled those three important components of the job will not typically be able to shift liability onto the general contractor. 

The concept of the “meddlesome employer” often has much more to do with injuries suffered to workers during the project or occupants of a structure due to a construction defect. Again, the contract you sign with a subcontractor should clearly state where your liability ends and where another’s liability begins. Next month, we’ll take a look at another exception to liability immunity for general contractors. 
Florida Construction Law Group provides top-notch legal service for general contractors and other construction professionals during contract negotiations. Our Miami firm also handles a wide variety of litigation matters arising from construction disputes. Call us at (305) 227-4030 today to set up a time to speak. 

21May 2021

Premises liability refers to the obligations of property owners and managers to keep their premises safe for third parties who have either explicit or implied permission to be there. This is an important component of personal injury law in Florida and elsewhere in the country (and world). Broadly speaking, there are three types of people in the world of premises liability: 

  • Invitees
  • Licensees
  • Trespassers

Invitees receive the strongest legal protections from property owners and managers. In other words, it is easier for invitees who are injured on a premises to receive compensation than licensees. Licensees are people who are legally allowed to be on the premises but have not been invited onto the property. Trespassers who are injured while on someone else’s property are almost never awarded compensation from the property owner or manager. There is one notable exception that Florida property owners, managers, AND general contractors need to know. 

What is An Attractive Nuisance? 

An attractive nuisance is something on a property that entices children to trespass on the property. Perhaps the most common example of an attractive nuisance is a swimming pool; every summer, we often hear about unattended toddlers who tragically drown after wandering into pools. There are many other real-life examples of attractive nuisances, including upright ladders, power tools, and other equipment you might find on a construction site. If a particular child is unable to grasp the risks of going onto a construction site and gets injured after engaging with an attractive nuisance, the general contractor or other entity exerting control over the site could be on the hook for damages. 

When is a Contractor Liable for an Attractive Nuisance-Caused Injury?

Generally, five conditions must exist in order to prove that a general contractor should be held liable after a child is injured. 

  • The contractor must have known that a child may trespass on the premises where a dangerous conditions exists; 
  • The contractor knew or should have known that the dangerous condition would post a significant risk to a child; 
  • The injured child did not recognize the danger because of his or her age; 
  • The burden of removing the dangerous condition is slight compared to the child’s risk; and
  • The contractor did not take “reasonable” steps to remove the dangerous condition or otherwise protect the child from the dangerous condition. 

What Should You Do?

A good start at protecting your company from attractive nuisance claims is installing signage around the dangerous conditions that warn trespassers of the inherent risks. If you are at all able to do so, install some type of fencing around conditions that could be designated as attractive nuisances. At the end of each workday, clear out debris and anything else you can. Proper communication with your subcontractors and suppliers is also important. 

If you have been sued in relation to an attractive nuisance claim or think you might be, reach out to Florida Construction Law Group today to see how we can help. There are a number of defenses you might be able to raise in court. Regardless, you need to act promptly to put yourself and your construction firm in a good position. Call our team at (305) 227-4030 to set up a time to speak with an attorney.

19Apr 2021

Even the most experienced and knowledgeable prime contractors can put together a structure that contains defects. The causes of these defects often have to do with poor designs and blueprints or inferior materials, but sometimes your clients will allege shoddy workmanship on your part. 

Regardless of the root cause of a construction defect, there are a few structural components often associated with patent or latent defects. 

1. Inadequate window installations. Improper window installations or inferior materials used for sealant are both common causes of serious structural defects. One of the most prominent concerns here is the potential for moisture to get into the house and compromise the integrity of the building. Poorly installed windows can also cause unwanted air filtration, which affects the energy efficiency of the structure. 

2. Inferior weatherproofing assemblies. Builders must pay close attention when installing exterior weatherization components. This is especially crucial for single-family homes. Any compromises in weatherization protection can decrease the energy efficiency and air quality in homes. 

3. Poor foundational or footing work. The foundation of any structure—single or multi-family building, high rises, and everything in between—can be a hotbed for latent construction defects. Sometimes, the cause of a foundation failure has nothing to do with the workmanship and materials and everything to do with site preparation. There is always the potential, of course, for transpiration and evaporation to chip away at the integrity of the soil under the foundation. 

4. Roofs with insufficient wind-resistance components. The upward force exerted on roofing systems can cause the edges to rip off the membranes. Florida roofs, in particular, must be prepared for high wind speeds due to the potential for devastating hurricanes. Improper roof flashing can cause water to leak into the ceilings and result in expensive repairs. 

5. Inaccurate readings of blueprints. Depending on the project delivery method used on a particular construction project, the prime contractor might not have sufficient access to the designers and engineers. When each team is on a deadline, opportunities are rife for cutting corners. While we understand that you, as a prime contractor, are focused on responsibly executing your duties for construction of a safe structure, there is always a potential for disconnect with other teams on key project objectives. Having the right tools in place for effective interdepartmental communication is vital for an efficient project. 

Conclusion
Again, even contractors with great reputations are not immune from construction defect claims. Many times, these defects are either frivolous or not directed against the responsible party. Our firm has spent countless hours defending contractors against defect claims. If your livelihood and reputation are at stake, contact Florida Construction Law Group to discuss your options with our legal team.

26Mar 2021

When is a construction project actually “done”? Well, that’s a difficult question to answer. Once the general contractor and subcontractors leave the site, there are still statutes of limitations or statutes of repose that outline the time limits for the project owner to bring a claim. Conversely, there may be a point in which you can consider a project “completed” when the contractor is still performing work on the structure. This has to do with different ways to claim that a project has reached “completion.” We’ll look at one of those ways — “substantial completion” — in this blog. 

Substantial Completion Defined

To paraphrase, the American Institute of Architects describes substantial completion as the stage in which a building or structure can be used for its intended purpose. Contractors and subcontractors could still perform minor or corrective work on a structure after the parties reach substantial completion. Construction contracts typically set the target date for substantial completion. If substantial completion isn’t reached by the target date, the contractor could ultimately be liable for damages. 

When is Substantial Completion Usually Reached?

The optimal target date for substantial completion is unique to each project. Countless factors go into determining this date. Some construction professionals choose to tie in the certificate of occupancy when deciding on the target substantial completion date. Whatever you and the other parties decide, it’s important to be specific in the contract. 

Why is the Substantial Completion Date so Important?

Contractors are usually entitled to receive the remainder of payments when they reach substantial completion. Substantial completion means that the clock begins ticking on bringing claims against the contractor’s work, warranties, or statutes of limitations. Put another way, substantial completion means the parties are working toward final completion. For contractors, this involves knocking out the items on their punch list. 

Final completion involves one last inspection by the design team and engineering firm. If appropriate, the contractor or subcontractors may be requested to make final modifications to the structure. Retainage fees may be collected by contractors after final completion. Insurance obligations might shift to the building owner upon substantial or final completion. These questions should be answered in a thorough, well-negotiated contract. 

A Law Firm for Construction Professionals

While legal matters and disputes that arise with construction projects are heavily affected by the underlying contracts, not every “contract lawyer” is prepared to handle these issues. It’s important to have the help of an experienced and knowledgeable construction attorney to set up your contracts and efficiently settle any disputes that may arise during the course of construction. Please contact Florida Construction Law Group today to see how our team can help you and your team. 

26Feb 2021

Even construction projects with the most thoroughly negotiated contracts can sometimes get bogged down in disputes between two or more parties involved in the project. Disputes are more common among parties who are not seasoned construction professionals; however, it can happen to anyone. If, despite your best efforts, your project has been halted due to a dispute, you should first refer to the contract. You and the other party in conflict might be required to go to mediation or arbitration (two common forms of Alternative Dispute Resolution) before starting litigation. Even if your contract does not require you to first go to ADR, it can be a good idea. 

Differences Between Mediation and Arbitration

As mediation and arbitration are both forms of ADR (Alternative Dispute Resolution), they can be used as alternatives to traditional litigation. Both mediation and arbitration involve a neutral third party (mediator or arbitrator) who aims to get the disputing parties to come to an agreement. The arbitration process is more formal, though, and ends when the arbitrator issues a decision (which may or may not be legally binding). Although mediation may eliminate the need for litigation, arbitration is more appropriate as a substitute for litigation. 

Benefits of Mediation

Mediation, relative to arbitration (and certainly litigation), gives the disputing parties more control. Instead of building to a decision, the mediator’s aim is to help both sides come to a mutually beneficial agreement when the parties aren’t interested in communicating with each other. This is better for parties who still want to work together. Additionally, mediation is typically kept confidential. 

Benefits of Arbitration

You could think of arbitration as a middle ground between mediation and litigation. Parties involved in arbitration are not involved in litigation but still present evidence to a neutral third party, who eventually reaches a decision. In many ways, arbitration combines beneficial elements of litigation without the massive expenses and long timelines associated with court actions. Some construction contracts stipulate that the arbitrator’s decision is final, while other contracts give parties the option to go to court after going through arbitration. The results of arbitration may also be kept private. 

Litigation is useful for plenty of parties embroiled in construction disputes that cannot be resolved in mediation. However, it is usually best regarded as a last resort. Though judges are experts in law, plenty of them are not well-versed in the nuances of construction-related matters. Plus, once you begin litigation, you get locked into a long discovery process that can push back the end date for your project at least a year. 

Florida Construction Law Group offers construction professionals precise legal counsel for any disputes that arise during a project. Litigation may very well be your best option, but the only way to find out the optimal path forward is to let our experienced legal team review your circumstances. We look forward to serving you soon; get in touch with us through our contact page to set up a consultation.