Construction Legal Questions

I'm not sure what your complaint is.  Do the units work?  Is the house being cooled?  You complaining because of oversized units?  Is the claim that there is some excess cost you have incurred as a result?  If so, you will need to hire an expert who will be able to demonstrate the difference in the cooling capacity of the proper size compressor and the size compression that you have, the cost of each payment of loss you have suffered as a result of the oversized compressors being utilized.... Read More

You have 2 primary issues, your contract and the trespass to your property. There are legal (court action) and practical remedies for your situation.  While a lawyer may be helpful to resolve your issues, I doubt that you will need to use a legal remedy.  Most often situations like this are resolved by a lawyer’s letter.  People are often persuaded by a lawyer’s letter, but not by a homeowner’s letter. First, the use of your yard;   Ryan may have reserved a "license" to use your property in your contract, check your contract.  More likely, they are just doing what is convenient and trespassing on your property (https://en.wikipedia.org/wiki/Trespass_to_land ).  Trespass by itself is a tort (a civil wrong resulting in legal liability).  It can be controlled by an injunction issued by a court or money damages for actual harm, such as damage to your grade, or loss of use because of their damage to your property to keep the landscaper from finishing the work, even the extra work/water to keep the soil moist enough for the grass seed to germinate and thrive. While they weren't promising to deliver a final grade until June 30, it seems unlikely that they delayed the delivery so long because they planned to continue using it, but more likely because they were reserving possible weather delays for their benefit.  It doesn't mean that you couldn't have done your work before that, but you would have had to do the final grade yourself and have it approved by the city. Your second issue, Ryan's failure to deliver a properly graded yard, will be covered by your contract and city building code.  The primary purpose of the final grade is to assure that surface drainage is directed away from the house and does not cause problems for or damage to neighbors' property.  Leaving ruts sounds like they haven’t completed a final grade.  Final grade may have been approved by the city, but later damaged.  The rocks, boulders and branches probably don't have anything to do with the final grade, but are likely controlled by your contract.  It sounds like they may have not completed the work in a "workmanlike" manner, which may give you rights under the statute http://codes.ohio.gov/orc/4722 .   Because you are running out of time to get your lawn planted (ask your landscaper), you should encourage Ryan to finish the work immediately (using a lawyer letter) and if they won't, check with the city, see if they have gotten approval on their final grade.  If there is a final approval, photo/video the problems, then get the work finished by your landscaper, having him or her document the charges for the additional work, then try to recover that from Ryan.  It's better than planting late, having a bad lawn merely because you waited for them to do the work. Contact your attorney now, have him or her review your contract and your photos/videos, then write a letter ASAP.  Then, with your attorney make a decision as to the next step if Ryan doesn't agree to resolve your issues immediately.... Read More

The lawyers for the class action lawsuit are concerned with settling the common questions and issues that apply to all members of the class.  By your description, you have other issues that are not part of the class issues.  In such a case, it is always wise to retain your own attorney to deal with those aspects in particular, and generally to watch out for your particular interests.... Read More

The short answer is yes it is possible for the builder to give you a reimbursement or extended warranty.  Because it is possible, doesn't mean that they will, especially the reimbursement part.  If they believe in their construction, they shouldn't have too much of an issue giving you an extended warranty, depending on how much extra time or what additional conditions you are hoping to get. You didn't mention if your basement is block or poured, how large the cracks actually are/were and whether you have or intend to finish your basement now.  Both block and poured basements crack.  Because you didn't mention joints between blocks, only the joint lines between the two walls, I will assume that it is a poured wall.  Estimate how wide the cracks are.  Can you stick a dime in the crack?  A pencil? Something larger or smaller?  Depending on the actual width of the crack, it may be within expected tolerances and epoxy might be the correct remedy.  If the cracks are wider, maybe not. If you are finishing the basement now or soon, you will have an additional measure of difficulty, that is proving that you have an issue behind the drywall, until you have a real issue.   If you would like to discuss it more, please feel free to contact me, we offer a free telephone consultation that might help ease your mind or determine if you need some additional assurances from your contractor.... Read More

When you say that his contract "expires" on March 21, I assume that you mean that the work was to be finished by that time.  I also assume that you have a written contract that spells out your remedies and that this shed is on your residential property. If you don't have a written contract, the contractor has other problems as that by itself if a violation of the Ohio Consumer Sales Practices Act "OCSPA".  You should talk with a qualified attorney.  Have them read your contract and advise you of your rights under the contract,  the "OCSPA" and other Ohio statutes. If the contracts says that he is supposed to be finished by a certain date, he doesn't have more time, unless he was delayed beyond his control.  You have to read the contract to see how that works.  The fact that he didn't pull permits may or may not be an issue in your community as some do not require permits for that kind of work, especially if there are no utilities serving the shed.  If your community requires that contractors register with the community and are "licensed" they may also have required that he post a bond.  That may be of help to you. A letter from a lawyer may be all you need to get him to finish the work or make some reasonable settlement with you.... Read More

ALWAYS SERVE A NOTICE OF FURNISHING to get paid on time.  Even if you are late, serve your Notice of Furnishing NOW.  Do NOT count on the contractor or surety not noticing that you didn’t serve the NOF, they always notice.  Additionally, if you are paid anything on the project, you will likely be able to apply it to your earliest pay applications, the ones not covered by your late NOF, so the more that you are paid, the more that the problem with your late NOF is cured. I serve a lot of NOFs for clients and file a lot of Ohio Mechanic’s Liens and bond claims.  Serving your NOF after the 21-day time limit hurts you, because you won’t have full lien or bond rights, but at least you will have SOME lien and bond rights.  Even more, the contractor will always be concerned about liens being filed.  Even if your NOF is late, they will start asking the subcontractor that hired you for your lien waiver.  Of course, you are only giving your lien waiver in return for payment, so, problem solved. As a sub-subcontractor, you actually have to attach a copy of your NOF to your lien on a public project.  Without it, your lien will likely be rejected by the public authority.  Even if they don’t reject it, the contractor, or its attorneys, will catch the problem and demand that you release the lien immediately or sue you for damages caused by an improper filing. Rather than doing this yourself, especially as you don’t normally serve Notices of Furnishing, call your construction law attorney to be sure that you get this one done right and quickly.  An experienced Ohio attorney who represents construction subcontractors will likely be able to get it served for you the same day. SERVE NOTICES OF FURNISHING ON ALL OF YOUR PROEJCTS.  You are right about it not being NECESSARY for a first tier subcontractor on a PUBLIC project to serve an NOF.  Having said that, it is a good idea to serve your NOF and get a copy of the Notice of Commencement, it just doesn’t cost that much and it is good insurance to get you paid on time.  Serving the NOF will bring you to the attention of the person writing the checks.  When I serve NOFs for clients, I also serve the public authority, even though you don’t need to because it is just one more person looking out to be sure that you are paid or at least that they have your lien waiver.  You are more likely to get paid on time if you serve an NOF, even if you don’t need to.  At the same time you serve the NOF, ask for a copy of the NOC.  You will need it later if you want to file a lien or serve a bond claim because you have to send your lien to a specific person at the public authority to assure that it is a good lien and you have to know the name and address of the surety supplied the payment bond.  All of that information is in the NOC. A lot of your construction law questions can be answered on my website www.OhioConstructionLawyer.com in both the FAQ and Video sections.  In fact, there is a Notice of Furnishing video right on my Home page.... Read More

Starting at the end of your issues, the fact that he is not licensed may or may not be an issue, depending on the trade, as not all trades are "licensed."  Some communities also have a "licensing-type" requirement, which is mostly a tax on the contractor, but may also have a bond that the contractor had to post with the municipality for your protection.  It is worth calling your city hall to find out. From your description, it sounds like this is a residential project.  If so, Ohio has laws to protect homeowners who live in the property.  You may be entitled to additional damages by statute, along with the recovery of your attorneys fees from the contractor. The "lies" may or may not be enough to terminate your contract, but other issues, such as some of the statutory protections, may permit you to terminate and get all of your money back. Having said all of these things, reviewing your contract and getting legal advice would, depending on the attorney cost you in the range of $100 to several hundred dollars.  More important, however, is the action that you would want that attorney to take, as the attorney is much more likely to be able to get the contract terminated and get your money back than you are, so you are actually looking for more than just a contract review and advice.  Assuming that the contractor is financially solvent, the cost of the attorney may be irrelevant as a good attorney will at least try to settle your case quickly having you spend as little as possible or try to negotiate a resolution that recovers all of your money, plus, hopefully, some or all of the attorneys fees.  Short of a trial, the best thing about the attorneys fees provision is that it makes it expensive for the contractor to fight you, knowing that they may not only have to pay their attorney, but yours, too, if you go to trial.... Read More

Since this was a School renovation and therefore prevailing wage applied, the contruction job is very likely bonded and if you are a subcontractor you should be able to file a claim against the bond. It sound like you are a sub-subcontractor (that is you are not working for the contractor, but a subcontractor).  Different rules may apply. Also be aware that some standard contracts include a "pay when paid" clause. This means that even though you did everything you were to do, your contraoctor doesn't have to pay you until it is paid. Case specific information would be needed to be able to determine if that is applicable to your case and is enforceable. There are also statutory specfic provisions regarding Contractor and Subcontractor Payment Obligations.   All matters are dependent upon all of the facts and circumstances of each situation, and there are factors which may cause a general rule or principle set forth in any response or the information in any memoranda to differ for your situation or inquiry. The provision of a response or other information is not intended to provide legal advice or counsel to you, and is not intended for you to take or refrain from any action. This response does NOT create an Attorney-Client relationship... Read More

Write back offering to address the "cosmetic issues."   If the HO accepts your offer, when you return make sure you take pictures showing the "before and after" conditions as well as any other issues you think might arise. Then you will have some good evidence if the HO later decides to take you to court. If the HO does not accept your offer to repair, document that fact in a letter as well.  It will show the judge that you were being reasonable in offering to address the claimed defects and that the HO refused. Unless you performed the work as an unlicensed contractor, I seriously doubt that the HO would ever be entitled to a "full refund" for the work performed.  Good luck.... Read More

From your description, it sounds like your claim may be barred by Colorado's statute of repose. With respect to claims for defective construction, C.R.S. sec. 13-80-104 states: "in no case shall such an action [i.e., a claim for defective construction] be brought more than six years after the substantial completion of the improvement to the real property." The statute does provide that if the claim arises in the fifth or sixth year after, the claim must be brought within two years of when you knew or should have known of the manifestation of the defect. If you do not know of the manifestation of the defect until seven years after substantial completion, the claim is probably barred. That said, for a claim exceeding $8,000, it may be worthwhile to consult with a plaintiff's construction defect lawyer to walk through the specific facts and dates pertinent to your situation.... Read More

Your question about  faulty floor installation is all too common and may be of broad general interest to readers of this site. I have been representing clients on both sides of these issues in Maryland and D.C. for over 20 years. Generally, you have picked the right category. With a few exceptions, attorneys in Maryland may not say they "specialize" in a particular area of practice, such as construction law. However, attorneys who routinely handle "construction cases" would be familiar with the types and maybe even the names of experts they would want to hire to advise you and present appropriate evidence to the trial court. Attorneys are not legally "competent" to advise clients on the existence or absence of particular construction defects, even though they may have seen defects of that kind many times in the course of their particular practice. The "right" expert might help settle the case before any trial and maybe even before suit had to be filed.  Of course, other factors can also intervene that would alter the above. This is at best a general overview. I encourage you, and all other readers, before you act (or decide not to take some action) to seek competent, local legal counsel who can address the specific facts of your particular situation. This web site and the responses herein, including this response,  are designed for general information only. The information presented at this site should not be construed to be  and is not formal legal advice. No attorney-client relationship exists and no attorney-client relationship is formed or created by this response or any response on this website. Furthermore, this does not represent the views or opinions of LexisNexis or its affiliated companies.... Read More

  Wow! Your question about shoddy home repair raises a number of important issues that may be of broad general interest to readers of this site. I have been representing clients on both sides of these issues in Maryland and D.C. for over 20 years. First, it is the end of January and you note your Certificate of Occupancy expires in February. Go see a local attorney immediately. It may be too late to save the C of O already. You note that the contractor is licensed with the Home Improvement Commission. That is one of the first inquiries for other readers. Absence of a license for a contractor who does home improvements in Maryland could mean BIG trouble for that contractor. Along with the Home Improvement Commission, Maryland has a home improvement guarantee fund. Licensed contractors post a bond that can be gone against for financial recovery. It might not cover all the damage you may have but it is something. Generally, a civil suit keeps you from pursuing a claim with the Home Improvement Commission. You describe considerable “delay” damages and what appears to be a great amount of professional neglect. You mentioned that his negligence caused the destruction of your home. You also note that the contract was for $98,000, that you have paid $117K and that he wants $17K more. The attorney you go to will need to know the relation between those numbers and his negligent destruction of your home. You will need to know very quickly what your actual damages are and an attorney is not legally "competent" to provide an expert opinion on construction or delay damages. Your description suggests high damages and a short time frame to make a decision. Of course, other factors can also intervene that would alter the above. This response is not intended to address all possible issues. This is at best a general overview. I encourage you, and all other readers, before you act (or decide not to take some action) to seek competent, local legal counsel who can address the specific facts of your particular situation. This web site and the responses herein, including this response, are designed for general information only. The information presented at this site should not be construed to be and is not formal legal advice. No attorney-client relationship exists and no attorney-client relationship is formed or created by this response or any response on this website. Furthermore, this does not represent the views or opinions of LexisNexis or its affiliated companies.... Read More

Virginia by statute provides a  5 year warranty on the foundation of a new home, Code Section 55-70.1, counting from the earlier of the date of first occupancy or the date of closing.  What you describe sure sounds like a foundation issue. I'd suggest contacting the County Department of Building Inspection if you haven't already as in most areas of Virginia, they are fairly active in policing builders to build everything according to Code.     Construction litigation can be very expensive, and sometimes the purchase contracts limit some remedies so a close review of the purchase agreement is in order.   You may be able to find someone willing to litigate the matter through the State Bar's Lawyer Referral Service, but be aware that construction litigation can be time-consuming, tedious, and expensive, and many attorneys don't like to go down this path. ... Read More

The agreement between you and the contractor will be determinative.   If you do not have a written agreement, you will want to work with your contractor to prepare a written punch list and agreement which will govern how and when the remaining items will be completed and/or corrected prior to payment in full. With regard to the lien, C.R.S. § 38-22-128 provides that a person who files a lien for any amount greater than is due without a reasonable possibility that the amount claimed is due and with the knowledge that the amount claimed is greater than that amount then due, and that fact is shown in a proceeding under the mechanic’s lien law, forfeits all rights to the lien, and is liable to the person against whom the lien was filed in an amount equal to the costs and all attorney fees.  The obvious intent of this provision is to punish claimants who abuse the mechanic’s lien law. You may wish to retain an attorney in order to perhaps escrow money so that the contractor and you are comfortable with respect to how the matter will be handled and that the funds are in the hands of a party which will handle the funds according to an agreed set of instructions. Please note this response is general in nature and is not legal advice. No attorney client relationship is formed by it.  Furthermore, the response does not represent the opinions or views of LexisNexis or its affiliated companies. I hope this information is helpful. Kind regards,   Cyrus Rajabi... Read More

You didn't say which state you were in when the injury occurred.  Here in Ohio, and in every other state, you would have a workers compensation claim.  The issue with the workers compensation claim is that in most circumstances the workers compensation act for that state insulates the employer from personal injury claims.  Your medical charges and, if you have uncompensated lost time from work that should be covered by workers comp.  You will not get the classic "pain and suffering" that you would in a non-work related personal injury, but you may have some temporary or permanent partial disability as a result of your injury. One of the ways around that protection for the employer is if there is a law in your state requiring special safety requirements for your particular work.  From your description, it sound like the kind of equipment which would need a guard, but that will vary from state to state and with the specifics of the equipment.  In Ohio it is called a VSSR or a Violation of a Specific Safety Requirement claim.  That will get you additional compensation.  You may also have a direct personal injury claim against your employer, depending on the laws in your state.  Personal injury claims in work related injuries are most often available when the employer intentionally did something, like remove a guard, which would be likely to cause your injury.  The theory that avoids the workers comp defense to a personal injury claim, at least in Ohio, is that such an injury is not "in the course of and arising out of your employment" because you don't expect your employer to do something to intentionally hurt or injure you.  Other states may have other types of personal injury laws in the event of such a violation. You may also have a claim against the manufacturer of the equipment.  That, too, will depend on several issues, including state law, the age of the equipment, what guards were on the equipment when it was manufactured and several other issues.  Each state has a statute of limitations, a limitation of time between the date of the injury and the time you file the lawsuit/file a workers compensation claim.  In addition, many states have statutes of repose, a limitation on the time period between the delivery/installation of the equipment that injured you and the time of the injury/date of the filing of the lawsuit.  Those laws change all the time.  When I was in law school Ohio did not have a statute of repose and the law firm that I worked for filed a claim on a conveyor belt manufacturer that built a conveyor 75 years earlier.  Now, Ohio has a statute of repose that would have forbidden that claim. Check Lawyers.com for a workers compensation attorney in your city and state.  It is likely that a good workers comp attorney in your state will also be able to handle the VSSR type claim and any personal injury claim against the manufacturer, if there is one available to you.... Read More

Water in Virginia is considered a "natural enemy" and any property owner is entitled to "fight it", i.e, divert or control the flow of water off of his land, even to the point of diverting it on to adjoining property owners BUT, it cannot be done to the point where it cause damage. You use the term "flooding" so I'm assuming it's pretty extensive and sounds like it goes beyond the amount of diversion allowed.  If water is simply soaking into your lawn, the builder really isn't causing a problem, but anything more would likely cross the line.  (no pun intended)  All builders here as part of the development approval process must submit an approved sediment and erosion control plan, and I suspect Ohio has a similar requirement so before spending too much money, contact the local building inspection department and they may take action as it sound like the approved plan isn't being followed.    If that doesn't work, an Ohio attorney will need to advise as to whether the laws are the same there, but I would suspect they are. ... Read More

Since the contractor hired the subcontractor, the contractor is responsible if the work was bad.  You should talk to the contractor and find out what he plans to do about it.  Usually, you need to let the contractor try to repair to see if he can fix the problem. If he can't fix it, or refuses to, you can bring a suit against him for the cost of the repair.  You will need another contractor to testify that the floor was poorly installed.  ... Read More

Depending on your contract, you may or may not have a right to withhold payment. If you do not pay the service provider, it may have a right to file a lien against your property. If it files such a lien, a files a lawsuit to foreclose on the lien, you would have a right to prove that there are deficiencies in the work and seek a setoff for the amount necessary to correct it. Obviously, litigation should always be the last resort. I recommend that you try to sit down with the contractor to work things out amicably. If that proves unsuccessful, you may want to consult with an attorney who specializes in both construction pay disputes and mechanics' liens. Depending on the amount in dispute, this may or may not be warranted. That said, if there is a lien placed on the property and the contractor sues to foreclose on the lien, you will more than likely want to seek legal counsel anyway.... Read More

Your question implicates a variety of factors which go to the viability of your claim for relief being brought in Nevada.  The first is that you indicate that you were hurt on the job, which means that you are likely subject to workers compensation laws.  You should meet with a workers compensation attorney to determine whether your claims are covered thereunder. Although your question does not directly ask, it is certainly implicates the issue of whether the suit could be brought in Nevada.  If Defendant/Employer is a Nevada entity, jurisdiction exists.  If Defendant is an out-of-state entity, then whether the Defendant can be hailed to Nevada from outside of Nevada is usually a product of Nevada's "long-arm" statute.  To obtain jurisdiction over a non-resident defendant, you must show: (1) that the requirements of the state's long-arm statute have been satisfied, and (2) that due process is not offended by the exercise of jurisdiction.   Nevada's long-arm statute [NRS 14.065] is as broad as a the UNited States Constitution allows and requires personal service of a summons upon the Defendant outside of Nevada is sufficient to confer upon Nevada courts jurisdiction over the Defendant so served if the service is made by delivering a copy of the summons, together with a copy of the complaint, to the Defendant in the same way that service is permissible in Nevada. The 14th Amendment requires a nonresident Defendant to have minimum contacts with Nevada sufficient to ensure that exercising personal jurisdiction over Defendant would not offend traditional notions of fair play and substantial justice and that the Defendant must have sufficient contacts with Nevada such that Defendant could reasonably anticipate being haled into court here.  Personal jurisdiction and the proper remedies are all topics which you should take up with qualified counsel.  ... Read More

The answer is, it depends. According to CRS 13-80-104, you have two years from when you knew or in the exercise of reasonable diligence should have known of the manifestation of the defect in construction to bring a claim against a construction professional. You can find a copy of the referenced statute at http://www.codla.org/secure/crs13-80-104.pdf.  If you recognized the manifestation of the defect upon completion, in June 2010, you may be out of time. If you recognized the manifestation of the defect within the last two years, you may still have time in which to bring a claim.... Read More

no - its not "legal" to store those materials on your lawn.  however, if the company that stored the materials there is repairing your lawn, the "wrong" they have committed has been made "right".  you did not mention any other damages you had other than the construction company damaging your lawn.   If the renovations were to the road, it is possible that the concrete blocks were to be placed in an easement along side of the road and the company placed them on your property inadvertently.  You should be certain that the town you live in does not have an easement or right of way along your property. ... Read More

I hate to say that it depends, but it does. There are a lot of factors that go into the analysis, for instance, does the contract have a guaranteed maximum price or is it a cost plus fee contract? Were there unforeseeable changes in the scope of work or site conditions that caused the increased cost? Not knowing what the contractual arrangement was between you and the contractor, and not knowing the cause for the increased costs, it is difficult to determine whether you have a case to not pay any more. My suggestion would be to put together all of the paperwork you can gather between you and the contractor, including the contract, plans, communications, pay requests/invoices, and receipts for payment and schedule a meeting with an attorney who specializes in construction law to determine whether there is a legitimate case to not pay more. ... Read More

Since he has filed suit, you will need to appear and defend. You will want to bring your pictures, but you will also need an "expert witness".  Usually, an expert witness in this type of case would be a person who has a license from the state to work as a contractor ,(a license from the Department of Professions and Occupational Regulation http://www.dpor.virginia.gov/dporweb/dpormainwelcome.cfm     You can check that site to see if they have a license)  You need an expert to tell the court what was done wrong.  You may also want to file your own suit to recover damages depending on the quotes that you have received to repair the work. I suggest you contact a local attorney  that can either represent you in court, or at the very least, they can, for a fee, meet with you for an hour or so and go through your documents and give you advice on how to best present your case. ... Read More

If they came to your home as part of the initial sales call, they are required by the Home Solicitation Sales Act to give you written notice that you have the right to cancel the contract within 3 days of the day you signed it. If they did not give you the required notice, you can cancel now, and any time before they give you the written notice of your right to cancel.  If they did give you notice, and you emailed a response accepting their offer, and did not timely cancel,  I is possible a court would say you have a contract.  However, since they did not yet begin the work, you do not owe them the full contract amount, and should be able to negotiate to get out of the contract by paying a release fee of a modest amount. Note that the right to cancel only applies where the sale is solicited at your home, so it does not apply when you go to a Company's location to negotiate a sale, such as a car dealer, or store.   This answer is given in accordance with the laws of Virginia, and is based on the facts that are recited, and assumptions which may or may not be accurate. Accordingly, this response may not be relied upon and may not be applicable in any other state. It should not be relied on as legal advice, as that would require a detailed analysis of all of the facts involved in a specific case, not just the limited facts presented in the question.... Read More

The 2011 Pikes Peak Regional Building Code contains which regulates the installation, relocation, placement, additions, alterations, remodeling, and repairs of manufactured homes (HUD code units), factory build homes (UBC/IRC code units) and factory built commercial buildings (UBC/IBC code units).  See section RBC 309 - Manufactured Building Code, et seq. With respect to manufactured homes, the code provides: RBC309.13 LOCATION ON PROPERTY.Manufactured homes and factory-built units placed on a permanent foundation shall be located in accordance with the applicable provisions of the Building Code and the Zoning Code of the Jurisdiction, as applicable. RBC309.13.1 Minimum Setback Requirements.Where property is not governed by zoning regulations or no specific setback requirements exist, the setbacks shall be as follows: RBC309.13.1.1 Manufactured Homes.1. Five (5) feet from the street, with no infringement into setback.2. Twelve (12) feet from an adjacent home, with no infringement into setback.3. Six (6) feet from property line. Note: No infringement is permitted, except that open carports and patio covers in accordance with the Residential Building Code may extend to within two (2) feet of the property line. RBC309.13.1.2 Accessory Structures.1. Five (5) feet from side and rear property lines.2. Twenty (20) feet from front property line. You may need to determine if your mobile home park is subject to zoning regulations or whether specific setback requirements exist. Consider discussing the situation with the Pikes Peak Regional Building Department,  (719) 327-2880.... Read More