Skilled Construction Attorney

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Pierre C Belarge

Pierre C Belarge

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Westchester County, New York
I attended the contractors meeting last night, they had a construction attorney as the main speaker.

The first thing he mentioned is that attorneys are just like contractors, some are good and some are not so good.

To point out some of the things he mentioned, remember that some items may be different for different states, as all states do not have the exact same laws. So this is for NY.

1. in your contract, if you do not state how long your guarantee is for, it automatically goes to 6 years!!!! Wow, I never new that.

2. State in your contract that you get paid XXX amount of days from the receipt of the invoice. If the invoice is not paid within XXX time, the balance will incur a interest fee of 1 1/2 % per month. If this is not in the contract, you cannot charge it. Also state the nonpayment costs such as hiring an attorney will be passed on to the customer as part of the recovery. If you do not mention attorney' fees, you cannot ask for them.

3. In NY, liens on residential work are only good for 365 days from the date you open the lien. After that, they walk away from it. So you should start forclosure actions as soon as possible after the lien is open, this usually will get more action than the lien itself.


Basically with so many people either just not paying, losing a job and not paying or just trying to get out of paying the last bill, there is alot at stake, and you need to protect yourself in your contract before you start the work. Judges look at poor contracts as poor business practice, and do not feel for the contractor.


My advice is that for about $500.00 to $1,000.00 a contruction attorney can help you write the language in your contract that will help to protect you from bad contractors and bad customers. Cheap long term insurance these days.
Also remember to be careful in signing any document that a GC asks you to sign. They are getting very clever in finding ways not to pay, and it is all legal if you sign some of these documents. If you are not sure, ask for a copy and send it to your attorney.
Unfortunately, this is the trend in business these days, there may be a few who are fortunate enough not to have to deal with this, but it is a growing trend. PROTECT THYSELF or shame on you, is all I am saying.
 
Good advice Pierre!

I may even need to consider retaining a lawyer as an inspector...

Washington -- The Supreme Court ruled unanimously on Tuesday that cities, counties and other levels of government below that of states themselves are not protected by the general immunity from lawsuits that states enjoy in federal court.

Ruling in a case from Chatham County, Ga., the court overturned a decision by the federal appeals court in Atlanta that had shielded the county from an insurance liability lawsuit from damage caused to a yacht by a faulty drawbridge.

The appeals court acknowledged that the 11th Amendment, which the Supreme Court has interpreted as the precise source of constitutional immunity for the states, did not apply to smaller units of government under the court's precedents. But the appeals court found that "common law has carved out a 'residual immunity,' which would protect a political subdivision such as Chatham County from suit."

But there is no such "residual immunity," Justice Clarence Thomas said in his opinion for the Supreme Court. Thomas added, with reference to the intentions of the Constitution's framers, that the concept of a free-floating immunity for other levels of government "would serve to extend sovereign immunity beyond its pre- ratification scope."

A series of Supreme Court decisions in the 1990s invigorated the concept of state immunity and raised the question that the court answered in this case. The majority's position in the earlier cases, most of which were decided by 5-4 votes, was that because the states were sovereign before the Constitution was ratified, they retained immunity from lawsuits in federal court as an aspect of their retained sovereignty, given expression by, but not limited to, the 11th Amendment.

So the question naturally arose of whether this free-floating "residual" immunity applied below the state level to units of government. Under long-standing precedent of the lower court in this case, the 11th U.S. Circuit Court of Appeals, it did, at least to counties and municipalities that exercise power "delegated from the state."

Given that all political subdivisions exercise power delegated by the state, the justices found this analysis unpersuasive. Only those subdivisions acting as "an arm of the state" can claim the state's immunity, Thomas said.

The phrase "arm of the state" is a legal term of art that the court has applied very sparingly in the 11th Amendment context to agencies that are subject to a state's complete control and that have no independent powers or separate legal identity. Port authorities, regional transportation systems, land-use planning agencies and the like that make claims to the special protections given to arms of the state are regularly rejected.

In this case, the county conceded that it was not an arm of the state of Georgia, so Thomas did not discuss the question further in his six-page opinion.

Also Tuesday, the court ruled that federal judges, on their own initiative, can correct a state's error in math and dismiss an inmate's appeal that misses a filing deadline.

The immunity case is Northern Insurance Co. of New York vs. Chatham County, No. 04-1618.

The Florida case is Day vs. McDonough, No. 04-1324.

The Associated Press contributed to this report.
Click to expand...
 
I have to be a little skeptical. A lawyer telling everyone how much we need lawyers sounds a lot like the salesman writing the article telling us how we all need his UL listed ground rods.

As an engineer, I have only heard of one client not paying their bill. That was the only lawyer we ever did a project for. I guess he thought he thought we would have to hire a lawyer, and he would represent himself. So maybe he just thought we would let him off without paying :evil:
 
Steve
I cannot speak for other parts of the country,but the northeast or parts of it are seeing a trend where payments come very slow if at all. Contractors and business people (now trickling down to residential) are trying to make electrical contractors free banking companies as well. If your company does not see this, keep it up.

And yes, today we need professionals in all areas. Electrical professsionals to do electrical, and for ECs skilled help in the form of a good attorney. I doubt there are many electrical contractors who really know the laws (and loopholes) as well as a good attorney. If you do not see the need, don't do it. My comment is with the changes that I have seen,$500.00 to $1000.00 is cheap for help with setting up contracts you may use for years, and could be worth $1,000,000.00s of dollars.
Especially with the internet and access to info, the consumer has a better knowledge of what is happening today - some are unscrupulous and will...
 
I know lawyers are a necessary evil, and it sounds like his presentation was pretty good. I am just trying to add a touch of skeptisim.

And like you said, I think a lot of that language can be added onto the invoices by the contractors themselves. That probably would prevent a lot of problems from starting in the first place.

Steve
 
pierre

the only problem with the fancy lawyer contract, is to get paid, the contractor would still have to take his time to go to court, and what good is a fancy lawyer contract without the $500 dollar an hour lawyer to go with you, and I am sure most big contractors have lawyers also who will find loopholes in your contract, and if your a contractor who needs the money you will settle for 1/2 just to pay bills, IMO things do not get better when lawyers get involved
 
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