The Atcachunas Law Firm, P.A.
Construction Litigation

Construction Litigation

Each construction project is unique. Consequently, there are numerous and different requirements that must be performed to ensure successful completion of a project. Construction law involves all aspects of a construction project, and it affects virtually everyone involved in a given project. Including the property owner, contractors, suppliers, and the laborers. Regardless of your role in a construction project, knowledge of your rights and duties under a given contract and the law is an essential part of a successful project.

BELOW ARE EXAMPLES OF SOME OF THE ISSUES THE FIRM HANDLES:

  • Lien Claims
  • Breach of warranty
  • Bond claims
  • Construction liens
  • Contract performance
  • Delay damages
  • Residential home improvement contracts
  • Property damage, including damage during construction
  • Issues related to Commercial General Liability insurance
  • Professional negligence
  • Building envelope/water intrusion issues
  • Construction defect disputes
  • Contract drafting

FLORIDA’S LIEN LAW, CHAPTER 713, FLORIDA STATUTES.

If your contract is not with the owner, you must serve your notice to owner within 45 days of the date your first furnish labor, materials or services. In most situations, the failure to properly serve a notice to owner will provide the owner with a complete to defense to the lien claim. Construction liens must be recorded 90 days from the date you last furnished labor, services, or materials. Again, the failure to timely record a claim of lien can provide the owner with a complete defense to the lien claim. The firm can advise you on the complexities of Florida’s Mechanic’s Lien Law to ensure all notices are timely and correct. This includes recording and serving applicable notices for your project.

FLORIDA’S CONSTRUCTION DEFECT STATUTE, CHAPTER 558,FLORIDA STATUTES.

If a dispute does arise, protecting your rights in pre-suit resolution is not simple. The Florida legislature has recently enacted changes in the Construction Defect Statute, Chapter 558, Florida Statutes; which now makes Chapter 558 applicable to virtually all commercial and residential construction projects. Chapter 558 requires the property owner provide the contractor with notice of defects, an opportunity to cure the defect, and sets forth time restraints for the notices and responses. If Chapter 558 is not followed, legal action may be stayed by the court until the parties comply with the law. See Chapter 558 on the FAQ page.

CONSTRUCTION CONTRACTS

Construction disputes can also arise out of a contract, and a well drafted contract may help avoid or settle disputes without the expense of litigation. The firm can review, draft, and negotiate owner, contractor, and subcontractor contracts. Do you know what’s in your contract? Do you have a prevailing attorney’s fees provision? When is it good to have and when is not good to have a prevailing party attorney’s fee provision? The firm can advise on these issues and draft a contract that suits your companies specific needs. Below are some issues common to construction projects and examples of contract provisions address those issues.

CHANGE ORDERS

Regardless of the scope of work, a contract should address change orders. Ideally change orders are written and signed by the parties. Written change orders should also contain the basic terms, i.e. the agreed price for the change, the adjustment to the contract time, and the adjusted contract amount. Change orders do not have to be written, but oral change orders can easily result in a dispute over the change in price or the amount of time added to the contract. Below is an example of a term you may want to include in a contract with one of your subs:

Prior to commencing any changed or revised work, the Subcontractor shall submit signed written estimates for adjustment to the Subcontract Amount and Subcontract Time for the change in the work. The Subcontractor is not authorized to commence with and shall not perform an changes in the work the change order is approved and signed by the Contractor.

PAY WHEN PAID

If you have not been paid by the owner for the work done by your subs, do you still need to pay your subs for that work? It depends on your contract. If your contract with the subcontractor shifts the risk of non-payment by the owner on to the subcontractor, then you won’t have an obligation to pay your subcontractor until the owner has paid for the work. See example that follows:

Subcontractor understands that payment by the Owner to the Contractor for the Subcontractor’s work is an absolute condition precedent to any payment by the Contractor to the Subcontractor. Subcontractor further understands that it assumes all risks associated with non-payment by the Owner.

DEFAULT BY THE SUBCONTRACTOR

What if your subcontractor fails to fulfill an obligation under the subcontract? Any failure to fulfill a contractual obligation can be considered a breach of the contract. Unless you contract expressly states otherwise, only a material breach will allow the non-breaching party to terminate the subcontract. More often than not, contractors will be frustrated by non-material or minor breaches of the contract terms. These minor breaches can usually be cured by supplementing the subs work or curing the breach for the subcontractor and back charging the subcontractor for the cost. Provisions such as the following address this issue and can be helpful should a situation arise:

If the Subcontractor defaults or otherwise fails to perform any obligation set forth in this Subcontract, the Contractor may notify the Subcontractor of the default. If the Subcontractor fails to correct or take reasonable steps to correct the default within five days of receipt of written notice, the Contractor may remedy or cure the default and deduct the reasonable cost incurred from the Subcontract amount.


Representative Clients

  • Novum Structures, LLC.
  • All American Water Restoration, Inc.
  • Florida Roofing Solutions, Inc.
  • Florida General Contractor Services, Inc.