Home Contractor vs. Homeowner

  Last week I arbitrated a case over Zoom.  The hearing lasted one hour.  The Claimant, a construction company, was owed high five figures.  They did not have an attorney’s fee clause in their contract. The Respondent never answered the arbitration demand and did not appear. The Claimant presented his damages and told me the history of the project.    I awarded him the full value of his claim plus interest and costs because they were provided for in his contract. What if this had gone to litigation?   He would have filed a lawsuit and paid for service on the defendant.   He would have had to wait twenty days for him to file an answer. He would have to file a request for default. He would have to file a motion for default judgment. Even if the claim were for a “sum certain,” the court would probably require a hearing on damages. He will have to appear at the hearing and testify as to his damages.    If the court is busy that day, he may h...

  As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote...

Photo by  Cytonn Photography  on  Unsplash Mediation is a wonderful form of dispute resolution.  It allows the parties to craft their own resolution to a conflict.  It frequently repairs relationships.  Parties tend to comply more with mediated settlements.   That said, there are definitely times when you should not mediate. As a refresher, mediation is an alternative form of dispute resolution where the parties attempt to negotiate a settlement of their dispute with the aid of a third-party, neutral mediator.   It is a confidential process.   If the parties come to an agreement, that agreement becomes an enforceable contract.   Since parties have control over whether they come to an agreement, they are much more likely to comply with a mediated settlement than a judgment. So, when not to mediate? When the other side refuses. Mediation is supposed to be a voluntary process.   The parties are supposed to attend a mediation...

I am guessing like the rest of you, I am still reeling from last night’s presidential debate.    I was so tense during the whole thing that I felt as if I had been through a horrifying experience. How could that have happened?  Trump came in like a bulldozer and just kept stepping on the gas.  Sadly, Biden did not seem to know how to deal with this attack.  As Dana Bash on CNN stated, “It was a shit show!” I couldn’t help imagining how I, with my arbitration/mediation skills, could have moderated the debate, which may have resulted in a very different outcome. State the Rules and Control the Process. In every mediation and arbitration, I remind the parties that it is my job to control the process.  They provide the evidence and information, but when it comes to procedure, I am the boss. So, knowing Trump’s track record, I would have sternly reminded the parties of their prior agreement to the debate format. “You will each have two  ...

As a result of the pandemic, the courts have a terrible backlog of cases, and parties who are trying to resolve disputes will wait months, if not years to see a resolution of their cases. The courts in Massachusetts have been doing a fantastic job of handling the issues raised by Covid-19, but there has been an unpreventable delay in processing cases. Mediation and arbitration have always been effective ways of resolving conflicts. Now, more than ever, parties should consider avoiding lawsuits and hiring an independent mediator or arbitrator to bring finality to their disputes.  What is the difference between mediation and arbitration?  Mediation is a voluntary process whereby the parties try to negotiate their dispute with the aid of a third-party neutral. The mediator has received training in trying to facilitate a resolution. The advantages of mediation are numerous. It is a voluntary process and the proceedings are confidential. If the parties arrive at a resolution of the...

The economy is good.  Home improvement contractors are busy, and homeowners are finally undertaking those renovation projects that they postponed when times were bad.   You’ve done your research and found a great contractor.  Everyone is excited to start the job.  Perhaps you glance at the contract, and it seems fine.  Why hire a lawyer to review your contract? It always astounds me when homeowners undertake six-figure projects without having a lawyer review the contract.  My rule of thumb is simple.  Always have an attorney look over your agreement unless it’s for an amount of money that you are willing to lose. Honestly, most contractors (and I represent many, many of them) get their contracts from the internet.  They include standard clauses that are required by state law.  They may have had an attorney review the contract, but that attorney is working for them , and is not representing your best interest. A contract is a “meetin...

When owners discover that their contractor has not paid subcontractors and suppliers, anxiety immediately sets in.  Contractors who are not adept at running their businesses end up with cash flow problems and operate on credit.  The situation then catches up with them and they stop making payments.  Suddenly the owner finds himself being contacted by subcontractors and suppliers who are demanding payment.  The law in Massachusetts is clear; a subcontractor or supplier can only collect against an owner if it records a properly perfected mechanic’s lien.  Then he can only expect payment to the extent that money is owed to the contractor at the time the lien is filed.  That said, the owner has the right to finish the job.  If there are no funds left, the subcontractor or supplier can only go after the general contractor for payment. Mechanic’s liens are complicated.  They consist of two documents: a Notice of Contract and Statement of Acc...

Recently I was contacted by some homeowners when their contractor told them that he had run into financial troubles and would not be completing their renovation work.  They quickly discovered that he had not paid numerous subcontractors and suppliers and left them holding the ball.  Over the years, I have seen this scenario many times.  Contractors who are not adept at running their businesses “rob Peter to pay Paul.”  At times, it is simply mismanagement of their finances, but sometimes it is intentional and criminal. How can a homeowner avoid getting caught in this kind of situation?  At its worst, I had a client who discovered that fourteen of the sixteen subs were never paid.  The homeowner pays his general contractor in good faith and then faces the prospect of having to pay twice for the same work and materials.  There are some ways that a homeowner can protect himself. 1.        Make sure your contractor is pr...

In Massachusetts, homeowners are not held responsible for complying with safety regulations in construction.  They can sandblast paint that may contain lead, walk on their roofs without protection and operate in blissful ignorance of the laws regarding safety.  If homeowners hire contractors who do not follow safety rules, they are not responsible for that either.  The risk of noncompliance falls on the contractor.  If a homeowner creates an unsafe condition, of course he/she may be liable if someone gets hurt, but the homeowner does not have to police the contractor.  In fact, since many safety regulations make the cost of doing a job more expensive, there is an incentive for homeowners to hire contractors who do not follow the rules!  Today my friend and colleague, Mark Paskell posted a story about a roofer in Connecticut who died after falling off a roof   http://www.thecontractorcoachingpartnership.com/Blog-Contractor-Coaching--Construction-Busines...

Mark Paskell first posted this at his blog,  http://www.thecontractorcoachingpartnership.com/Blog-Contractor-Coaching--Construction-Business-Coach-EPA-RRP-Lead-Rule/ , but I think it is so important that I wanted to post here as well.  Make sure all of your contractors have worker's compensation policies if they have employees.  If not, you may be held accountable if someone gets injured on the job.  Bravo to the government of MA for making this information available to the public. Here is a brief excerpt from the Massachusetts Department of Labor website;                                       Patrick - Murray Administration Launches  Free Web-Based Tool Will help Public Verify if Businesses have Workers Compensation Insurance Policy Boston, MA - The Executive Office of Labor and Workforce Development (EOLWD)...

Homeowners who are considering doing a renovation must know that if their homes were built prior to 1978, their contractors are required to follow certain procedures if they are going to disturb more than 6 interior square feet of paint or 20 exterior square feet of paint.  This law requires that the general contractor must become certified with the Environmental Protection Agency (EPA), and that the contractor himself take an eight-hour class in order to become a certified renovator and learn lead-safe practices that contain lead dust. Although the EPA claims that it will be doing a publicity campaign to inform homeowners about the Renovation, Repair and Painting Rule (RRP Rule), I have heard very little about it outside of construction circles.  So, I feel that it is important for me as a construction lawyer to educate the public about this rule. First of all, the preparation and education needed to comply with the law are going to cost the contractors more money.  T...

If you're trying to decide on a renovation project, here's one way to make your decision: http://www.realtor.org/rmodaily.nsf/pages/News2009121701?OpenDocument&WT.cg_n=RMO&WT.cg_s=RSSDaily

Statistics keep supporting the fact that green construction is up, even though the construction industry has been hit hard by the economy. If you aren't learning about green construction, you should be. http://content.usatoday.com/communities/greenhouse/post/2009/12/green-home-sector-booms-despite-housing-slump/1

Send me your residential renovation or new construction contracts (residential or commercial). After signing an engagement letter, I will review your contracts for free! If I don't find five things that might hurt your business, I will donate $50.00 to charity. If I do, you agree to donate $50.00 to charity. That's it. No strings attached. You do have to let me explain my recommendations to you; preferably in person.

In a previous post, I discussed why now is a good time to renovate. I pointed out that builders are not as busy and can devote more time to their projects, the economy has weeded out a number of "fly by night" contractors who were not truly dedicated to the profession and there have been sales on supplies and materials. One advantage that I did not mention, however, was the opportunity to ask builders to cut their prices. That's because I do not believe it's reasonable for owners to try to negotiate lower prices, and it's not good for the profession for builders to do so. Professional builders are usually quite realistic when preparing proposals for projects. I have met many contractors who proudly tell me that their jobs do not go over budget (barring unforeseen circumstances). They are usually quite clear about their markups and profit margins and accurate when determining allowances. They exemplify the adage that "you get what you pay for." Consider f...

I must admit, this question has been plaguing me as it pertains to Massachusetts. This issue applies to residential renovation only, but I know of many high-end contractors who use this method for their projects . Massachusetts law provides: Chapter 142A: Section 2. Residential contracting agreements; requirements Section 2. (a) Every agreement to perform residential contracting services in an amount in excess of one thousand dollars shall be in writing and shall include the following documents and information: (1) the complete agreement between the owner and the contractor and a clear description of any other documents which are or shall be incorporated into said agreement;... (4) a detailed description of the work to be done and the materials to be used in the performance of said contract; (5) the total amount agreed to be paid for the work to be performed under said contract; Given that a Time and Materials Contract does not have a price, I would argue that it violates the Home Im...

Here's a great guest post from Paul G. Cox, the Business Development Manager at Vigilant Woodworks on wine c ellars: If you have a growing collection of wine, it may be time to think about building a wine cellar or tasting/entertainment area in your home. Some time ago the custom wine room was unusual; today more and more wine lovers are learning about wine cellar construction or contracting the work out to those who know how to do the job properly. Wine cellars are more than a dark, cool place to stock a collection of wine bottles. Today’s custom wine cellar is a controlled environment where humidity and temperature are regulated to allow wine to correctly age without damage to corks, labels or the wine itself. There are two styles of wine cellars . One is an area that has been particularly made to store wine in the correct environment and the other is a stand-alone system that duplicates those conditions. A stand-alone wine cellar is ...

Check out these solar roof panels that look like traditional roofing tiles: http://www.solarfeeds.com/energy-boom/8756-stylish-roof-solar-panels-are-coming.html

All of these tips are quite doable and environmentally friendly. http://www.managemyhome.com/mmh/authored/articles/5+Tips+for+the+Dog+Days+of+Summer?sid=twitter

An important post on preventing fire in your home: http://www.managemyhome.com/mmh/authored/articles/Preventing+Fire+in+Your+Home?sid=twitter This article provides a great public service.