CONSTRUCTION LAW & LITIGATION
The firm’s construction litigation practice can be divided into 3 parts:
- Lien and bond claims, and collections
- Construction defect claims
Florida is known to be a place where people want to buy, build, or renovate a home and where businesses look to expand or relocate. The construction industry has many players and moving parts, and is regulated in many ways.
Construction projects are classified as being either private, public, and in some cases, quasi-public. In short, private projects are those where the Owner of the property being improved is an individual or a private entity. Public projects involve real property owned by a governmental entity or municipality, such as a county building or state university. Since construction liens cannot be placed on government property, a bond claim may be available and essentially takes the place of a lien claim.
Lien and Bond Claims, and Collections
A lien/bond claim is an additional point of leverage for one seeking to be paid for his/her/its services, material, or rental equipment, and is controlled by statute. In Florida, lien and bond claims are governed by the Florida Statutes (Chapter 713 and Chapter 255, respectively), unless the project is a federal project, in which the federal Miller Act would apply. Lien and bond claims require detailed documentation and the process to “perfect” a claim often involves strict deadlines. As a project progresses, limited releases are often expected in exchange for payments.
If you are a contractor or subcontractor, we can be retained to assist in the lien process. Likewise, if you are an Owner of property in Florida, consider retaining a litigation attorney with experience in construction law, to analyze and respond to threatened or actual liens. In Florida, the lien law provides that the prevailing party in a lien foreclosure suit is entitled to an award of reasonable attorney’s fees. The lien law may provide for an award of damages to an Owner if the lien is deemed wrongful by the court. Where the improved property is located is important too, as a construction lien for a construction project is county-specific. For example, if the property being improved is in Manatee County, FL, the lien and any resulting lien foreclosure action must be filed in Manatee County.
Understanding abbreviations like NOC, NTO and COL, the meaning of a release or an indemnification provision, or the word privity can be daunting, especially when there may be short or strict deadlines involved. As such, it is important to consult with a law firm that handles lien/bond claims on a regular basis to understand the leverage and risks that come along with a construction lien claim.
Even if you are unsure about your lien rights, you may still desire assistance with overall risk evaluation or collections. Successful collections often hinge on documentation, and efficient yet swift strategic action by your legal counsel. Contact us if you have a collection matter that needs attention. We understand that putting dollars in your pocket for previously uncollected invoices for services, rentals, or materials is a priority for you.
Construction Defect Claims
Unfortunately, some projects go unfinished or involve patent or latent defects. Generally speaking, patent defects are those defects that are open and visible to the eye, whereas latent defects are those that cannot be readily seen or observed. Whether a defect is patent or latent will affect the statute of limitations for a particular claim.
Chapter 558 was installed by the Florida legislature to encourage resolution of construction defect claims out of court. However, since Chapter 558 may not resolve your matter, your construction contract should also be reviewed for its dispute resolution mechanism (i.e. lawsuit vs. arbitration).
To prove or defend against a claim of defect in construction, an independent expert will typically need to be retained to evaluate your matter and potentially testify in court or at an arbitration proceeding as a witness. The law firm presents the case, including lay and expert witnesses, to a trier of fact.
Florida’s Department of Business and Professional Regulation (DBPR), Construction Licensing Board regulates licensing for construction professionals, and handles administrative complaints. Furthermore, Florida counties may require a specialty license for the work performed by the contractor being hired. In fact, the various Florida counties do not mirror each other as far as the number and type of specialty license categories. For example, Hillsborough County may require a specialty license for a particular type of construction service, whereas Pinellas and Pasco may not. There may be fines and/or penalties for unlicensed work, and in some cases, criminal repercussions. If you are a contractor facing civil or criminal issues in connection with licensing, it would be wise to consult an attorney at our firm. If you are an Owner of property, keep in mind that just because someone says they are licensed doesn’t mean they are properly licensed. Consider retaining an experienced construction lawyer if you are having an issue.