What Architects & Engineers Need to Know about the New Lien Law

engineering plansI have previously discussed the ABCs of Lien Laws for those making claims on a project (that is, architects, engineers, contractors, subcontractors, and suppliers) and the 123s of Lien Laws for project owners.  Now, time to learn some new tricks:  enter, the Lien Agent.

In case you’ve been hiding in your man-cave waiting for warmer weather to arrive and missed all the hoopla, as of April 1, 2013, North Carolina has a new lien law act.  Essentially, for *most* construction projects [there are a few limited exceptions for low dollar work or single family, owner occupied residences],  owners will need to file a notice of an entity to be their “Lien Agent”, and contractors will file notices within a short window of starting work.  If done correctly, it should keep everyone aware of who is on the project, who is doing what work, and who may have a lien.

The most pertinent part that affects architects and engineers?  This:

N.C. Gen. Stat. § 44A‑11.2

(h)        When a lien agent is not identified in a contract for improvements to real property subject to G.S. 44A‑11.1 entered into between an owner and a design professional, the design professional will be deemed to have met the requirement of notice under subsections (l) and (m) of this section on the date of the lien agent’s receipt of the owner’s designation of the lien agent. The owner shall provide written notice to the lien agent containing the information pertaining to the design professional required in a notice to lien agent pursuant to subdivisions (1) through (3) of subsection (i) of this section, by any method of delivery authorized in subsection (f) of this section. The lien agent shall include the design professional in its response to any persons requesting information relating to persons who have given notice to the lien agent pursuant to this section. For purposes of this subsection, the term “design professional” shall mean any architects, engineers, land surveyors, and landscape architects registered under Chapter 83A, 89A, or 89C of the General Statutes.

In other words, if the owner designates a lien agent up front, you follow the process and note your involvement for the record.

What if the owner does NOT designate a lien agent up front? You are covered by default, once he does so.  And he will do so, as  before the owner can get a building permit, he will be forced to designate a lien agent.  Nice, right?  You have built in protections, and you don’t need to worry about filing a lien and damaging a relationship with an owner if they are slow to pay.

The on-line system for selecting Lien Agents (for owners) and notifying Agents of your work (for everyone else) on a project is LiensNC.  A helpful tip sheet  produced by the Title Insurance industry walks you through the process.

Many other fine folks have weighed in on the nuts & bolts of how the new system works, so I will not repeat it all here.  Instead, let me direct you to a few of these resources (apologies in advance for anyone I may have slighted):

Bryan Scott:  A good place to start for a broad overview of what you need to know

For the designer’s perspective, from Matthew Bouchard:

I’m a design professional providing services prior to the execution of a contract for construction.  What if there’s no lien agent in placing during my pre-construction performance?

That depends on whether your contract is with the owner or with another design professional.  If you are in direct contractual privity with the owner and your contract does not include the lien agent information, the owner is responsible for providing your contact information to its lien agent upon the owner’s appointment of same.  If you are a design subcontractor, you should make a written request to the owner for the lien agent’s contact information.  By statute, you will have no obligation to comply with the preliminary notice requirements until you receive the contact information you have requested.

I believe that the new lien law will help design professionals, as you no longer have to worry about alienating the owner by filing a lien or risk losing your lien priority.  Instead, the lien agent will be as common as a building permit.  You will be protected from the beginning with little effort, and without even having to depend on the owner.   What do you think?

Comments? Questions?  Share you thoughts in the comments box, below.  

Photo (c) Seattle Municipal Archives.

 

 

When Running a Project, Don’t Think Like an Architect! (guest post)(Tue Tip)

Today, we welcome back Christopher G. Hill as guest author.  Chris is a LEED AP, Virginia Supreme Court certified mediator, lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris has been nominated and elected by his peers to Virginia’s Legal Elite in the Construction Law category on multiple occasions and is a member of the Virginia Super Lawyers “Rising Stars” for 2011 and 2012. He concentrates his practice on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.  

Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals. Additionally, Chris is active in the Associated General Contractors of Virginia and the Board of Governors of Construction Law and Public Contracts Section of the Virginia State Bar.  Most importantly, Chris’ blog was a personal inspiration to me as I set about my own blog back in 2009.  Welcome Chris!

Chris Hill
First and foremost, thanks to my pal Melissa for the opportunity to post here at her great blog.

Now that the formalities are out of the way, I will explain the title of this guest offering.  When Melissa first contacted me for my thoughts on poor project management from the contractor’s perspective, my first thought on how to avoid causing friction was “Don’t think like an architect.”

Before you flip the switch and head off for another post, possibly even another blog, hear me out.  Yes, I know that much of the audience for this piece is likely to be architects and other design professionals.  Yes, I know that all of you try hard.  But no, not all of you can run a job smoothly when acting as an Owner’s representative on a project (as opposed to designing a great building).  I’m here to help with my “musings” (see how I did that?) gained from years of representing the folks that you all seem to think are trying to ruin a project:  contractors and subcontractors.

The main thing that both “sides” of this equation need to remember is that you are all in this together.  Without your approval, the GC (and by extension the subcontractors and suppliers) on the project won’t get paid.  Without the GC and its cohorts, you, the architect, will have to listen to an Owner complain about the pace of the project and the fact that you aren’t running the project how that Owner wants it run.  See? All of us are in the same boat.

Failing to row in the same direction (to continue to beat this metaphor over the head) as the GC and seeing the GC as one that seeks to undermine your beautiful and artistic design sensibilities can only undermine those sensibilities.  GC’s and subcontractors, if asked nicely early on, can give you great insights into the scheduling, proper materials, and even the best and most efficient building design.

For example, an HVAC subcontractor can help you with the ductwork design in the beginning so that later on you aren’t barking at the GC because the subcontractor requested a change order (now waiting on your desk for approval) due to the fact that a load bearing wall would have to be moved in order for the ducts to go where you wanted them.  This minor bit of early discussion avoids the issue and keeps the GC and its subs happy, keeps the project on track and avoids messy things like liens and bond claims.

Failure to consult early and often, in a cooperative manner, leads to grumpy GC’s, ticked off subs, and a project that slows to a glacial pace.  This keeps everyone, including you, from being paid.

I could continue to rant, but you are smart folks.  You can do all of that engineering type math and all of that geometry and work with CAD that I decided was too hard so I went to law school.  You get the point: you and those that perform the construction at your project are not adversaries.  Yes, you represent the owner and want to make sure that the building is built right.  However, the best way to do this is to consult early and often.  Free information flow is the best way to keep everyone happy and everyone paid.

Thanks again to Melissa for letting me rant.

Thanks, Chris.  Ranting with a purpose is always welcome on my blog!  Readers, it is your turn.  Questions, comments, or rants for Chris or me?  Comment below.

Mine is better than yours! Battle of the experts in the construction lawsuit (Law & Order: Hard Hat files Part 6)

battling deerEventually, most construction lawsuits of any size involve hiring experts to review the project.  These experts then usually issue an opinion as to whether or not you, as the design professional, violated the professional standard of care for architects or engineers working on a similar project in a similar community.

If the case proceeds to trial, all sides will have their own expert(s), with rare exceptions.  Thus, the “battle of the experts” begins.  That is, a jury will have to listen to your expert, their expert, and the juror’s own common sense, and try to make out who is correct.  As with most things, there are probably valid points made by all of the hired experts (that is, of all the reputable ones, at any rate).  If a case gets to trial, you can be sure of it.

Hiring an expert to support your position can be a scary prospect.  You will essentially be paying (or having your insurance carrier pay) to have a competitor look over all of your work with a fine-tooth comb and 20/20 hindsight, to see if he can concur that your design met the standard of care.  Your attorney should work with you to get a good, solid professional peer retained as your expert; however, if you have any suggestions of who to use (or, who you do *not* wish to use), make those opinions known.  It is important to hire someone who is impartial about the outcome of the case, but you will not be required to hire your worst enemy/competitor.

Another protection that is built into litigation, is whether or not the expert’s opinion will ever see the light of day.  If the expert cannot support your position, he will be designated a “consulting expert” and his opinions will remain only between you, your lawyer, and the expert.  Assuming the expert does support your position, he will be designated as a “testifying expert,” at which point the other side can look at his records and notes, read any written reports he generates, and take his deposition.

Hiring an expert doesn’t have to be an arduous process, but work with your lawyer to get someone you respect on your side of courtroom.

Questions? Comments?  Share your experience with experts, or being an expert, in the comments section below.  And don’t forget to sign up for the Construction Professional newsletter and my free white paper on 7 Critical Mistakes, on the right hand side of the homepage.

Photo (c) Sias van Schalkwyk

 

 

 

Engineers: Here’s how to Securing your Mobile Device from Cyber-Attacks (guest post)

smartphone iconToday, a very important post from guest blogger Silvia Brook.  Silvias writes about home and cyber security for homesecurity.org. When she’s not writing, Silvia enjoys biking with her friends or cooking a new recipe from her compendium of cookbooks.

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Believe it or not, cyber security is still a big issue in the tech industry. It seems as though every year a new electronic device is released by one of the major hardware developers, and yet every year consumers who buy those same devices fall prey to a host of viruses, glitches, and malware. A tablet released this year may get hit with just as many (if not more) viruses as they model that preceded it the year before.

Part of why that’s the case is because malicious applications are changing and evolving at the same rate as the new devices that they target. Developers on both sides of the equation are fighting to make the better application—those who design security apps and protection software will try to keep your information, while hackers will try just as hard to take it away.

A recent assessment of the Android OS’s newest virus protection software might explain this problem. The new smartphone OS—Android 4.2—has a built-in malware scanner for apps. A computer scientist at North Carolina State University decided to see how this new scanning software stacked up third-party virus protection apps in a test that pits them all against the latest malware targeting smartphones. The study found that the Android OS app scanner caught malware content only about 20% of the time. The third-party security apps fared much better, some of which caught malware nearly every time.

What are we supposed to do with this information? Google seems to have trouble designing a competent virus scanning application for its own line of smartphones, all of which seem at least vulnerable to potential viruses according to the above report. If that’s the case, then how can people expect to put sensitive information (emails, finances, photos, etc.) on their smartphones?

I think the most important takeaway is that cyber security should be taken seriously by people who use mobile devices on a regular basis. There really are malicious apps out there that could do some serious damage to smartphones and tablets.  Design professionals such as engineers and architects who rely on their electronics for mobile work  are best off defending themselves from such annoyances with third-party apps designed by professionals with a proven track record.

Below are two apps by such developers which have received nothing but glowing reviews from critics.

Avast!

Avast! is a comprehensive software that addresses many key cyber security concerns. For one thing, the software will help users track their smartphones or tablets should they ever get lost or stolen. Avast! will let users locate their misplaces phones via GPS and send SMS messages to it should they want to address whoever has it. Of course the software also protects mobile devices from malware apps and websites that could be packing a nasty virus by scanning every app before it’s loaded. Avast! also allows users to build a firewall for their mobile devices should they suspect that hackers want to tamper with their data. In other words, Avast! is the whole security package for the Android, and it’s free!

F-Secure Mobile Security

F-Secure is an acclaimed security software company, protecting both home computers and mobile devices all sorts of cyber security threats. F-Secure will ensure that mobile users can browse the web safely without fear of encountering malware; the service will also scan incoming apps and data for any potential viruses that could compromise the safety of the device. Like Avast!, F-Secure also has a feature that will help users track down their mobile device should it be misplaced or stolen (and users can erase their data remotely it they suspect that someone has access to their information). F-Secure has a subscription fee, and it’s only available for Android users.

Melissa here again.  What about you?  Do you have a favorite cyber security app?  Depending on how much you work in the Cloud, you should!  

Share your recommendations in the comment section, below.  Just remember, I’m a luddite, so talk in plain and simple terms!

Photo (c) Lora Williams

 

How Green Building is Evolving Into Something Bigger (guest post)

Texlon green buildingToday, a guest post by the folks at Vector Foiltec.  Vector Foiltec  invented the use of Texlon (ETFE), and have developed the use of this innovative technology worldwide in the design and constructive industry. Some of the world’s most impressive offices, stadiums, and transport buildings have been developed by Vector-Foiltec.

 

Recent years have seen a surge in the number of designs and commissions of green buildings by designers and architects. All around the world, green, eco-buildings are becoming the benchmark of expectation. Not so long ago, a green building would standout because of how different it was. It would be something new, even quirky, and something unfamiliar that not everyone was comfortable with.

Those days have long gone, however, with a realisation that green building is the way forward, with environmental benefits as well as those attached to finances and quality of life improvements.

Eco-friendly buildings aren’t yet at the stage where we can celebrate them as the final frontier of construction, however. Yes, the new designs of buildings and the materials used certainly mean that an office block can be carbon neutral, but are they sustainable in other ways? The evolution of green building, now and in the future, will center firmly around the ability of designers and construction professionals to create buildings that are not only eco-friendly, but sustainable for use in terms of how they deal with extreme weather or other natural events, such as hurricanes and earthquakes, for example.

Always Working

Meeting the challenge of ensuring that a building can ‘always work’ has been an obstacle for designers. Placement of windows, for example, and the materials used within construction means that issues such as insufficient daylight are no longer an issue.

But what about when there is a power cut, or problems with the water supply?

To reach that searched for ‘final frontier’ that we mentioned earlier, designers need to make a building that can stand independently of central supplies such as electricity and water. This creates new challenges around energy recovery and storage as well as on-site water recycling, but it is possible to achieve results.

When a building is at the level where ‘always working’ has been achieved, a hurricane or other severe weather will then be minimally disruptive to it.

‘Always working’ represents a model for a truly sustainable building.

How It’s Made

The materials used are often the central focus of eco-building and have been responsible for many of the positive results seen in recent years. However, there is still a focus on developing eco-friendly construction materials further, and using them to best effect within a building.

So strong is this focus that there are now homes being constructed from ‘cob,’ and other similar compounds around the world. The great thing about these? They are lightweight, resistant to fire and earthquakes, and also stand up to events such as flooding and powerful winds.

The very meaning and identity of ‘green building’ is changing fast. Architects and designers that combine environmental benefits with true sustainability over the coming years are sure to find themselves in high demand.

Thoughts, comments?  Know of a ‘cob’ home that we should get pictures of?  Post in the comments section below.

Photo (c) Vector Foiltec

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