A light-hearted post from the “Art of Manliness” blog discusses 12 essential tools for a toolbox. Pretty basic stuff here, but something everyone–man, woman, or college-aged child–should have access to in their home.
Read it and see if you agree, and let me know what (other than duct tape, which is a given) should be added to the list………….
Tomorrow, back to the law part of the blog when we’ll be discussing, by popular demand, the Statute of Repose.
DeAnna Radaj
Last Tuesday I posted about the importance of properly handling the business of your construction business through having written contracts.
For today’s tip, I’ve opened up the floor to DeAnna Radaj, owner of Bante Design LLC. DeAnna has a division of workshops & programs that help design and construction professionals with their businesses. She is the author of “Designing the Life of Your Dreams from the Outside In” and “Feng Shui for Teens.”
Here are DeAnna’s tips for clients and workshop participants to market themselves better:
Do you have a good idea for finding and keeping your construction clients in today’s economy? If so, drop me a line or comment below and tell me about it!
If you are not a lawyer, but you play one on TV, you may have a passing understanding of the legal concept of a statute of limitations. This is post is to provide you just a little more information about the concept, and how it applies to your North Carolina construction project.
The Statute of Limitations is a time-barring statute which gives you a set time within which to bring an action (i.e., lawsuit) against another party. If you do not bring your lawsuit within that period of time, the court will kick it to the curb. The reasoning behind the statute of limitation (often, ironically, abbreviated as “SOL” in legal circles) is that people need to have some certainty in how long they can be sued for an event that happened in the past. Witnesses die or forget, papers are destroyed, and in general it is extremely difficult to try a case years after the fact. The law has, therefore, established a somewhat arbitrary deadline for when you can sue or be sued, and it is vital that you do not go past that deadline if you hope to bring a lawsuit.
The answer, as always, is: it depends. The statue of limitations is governed by whatever state’s law will apply to your case—usually, but not always, the state the project was built in. The statute of limitations is also determined by what type of lawsuit you are trying to bring (or defend against).
In North Carolina, the statute of limitations for most construction disputes (breach of contract, professional negligence, implied warranty of plans) is generally 3 years from the date time when you knew or should have known about the issue. N.C. Gen. Stat §1-52.1 ABL Plumbing and Heating Corp. v. Bladen Co Board of Education, N.C. App. 623 S.E.2d 57 (2005). See also AIA A201 para. 13.7. As always, there are exceptions. If a contract is “under seal”, a claim can be brought for up to 10 years. (N.C. Gen. Stat. §1-47).
If the contract involves merchandise and falls under the Uniform Commercial Code, the statute of limitations is 4 years. N.C. Gen. Stat §25-2-725. However, where a defect in merchandise results in bodily injury or damage to real property, the shorter 3 year statute still applies. Hanover Ins Co. v. Amana Refrigeration, Inc., 106 N.C. App. 79, 415 S.E.2d 99 (1992). In Hanover, a defective HVAC unit caused a fire, which destroyed a building. The court held that the shorter 3 year statute of limitations applied because the defective merchandise caused damage to the real property.
Therefore, it is best practice to assume that the Courts will find that the statute starts running at the first inkling of a problem, and bring your action accordingly. Also, regardless of the length of any warranty period, contractors can still be liable until the statute of limitations period expires.
Once a project has been accepted by an owner, the owner waives his right to claim damages for all but latent defects. Acceptance by the owner with knowledge of a defective performance may be deemed a waiver of the defective performance.
Where, however, the defect is unknown (or “latent”), the owner’s acceptance does not waive the defective performance. Tisdale v. Elliott, 13 N.C. App. 598, 186 S.E.2d 685 (1972). If a defect is a “latent” defect, hidden or not readily discoverable, the statute of limitations starts running from the date of discovery. Under AIA A201 para 13.7, any statute of limitations is deemed to have accrued in any and all events not later than the date of Substantial Completion. This section may shorten the statute of limitations in some cases of latent defects.
Yes. But, as they say on television, “don’t try this at home.” Carefully drafted agreements for a shorter or longer period of time can be executed. Consult your attorney before you do so, however. You may also want to check with your insurance carrier to make sure you have sufficient insurance coverage for a longer warranty period.
If the parties are working to fix problems, but the statute of limitations is fast approaching– run, don’t walk, to your attorney to discuss a tolling agreement to stop the running of the statute, or otherwise enter into legally enforceable agreements concerning the statute of limitations. Just because the parties are all working together to solve a construction issue now doesn’t mean that the finger-pointing won’t begin once the bill is presented.
Comment below, drop me an email, or find me on twitter @melissabrumback .
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Photo (Public Domain): “brightly coloured sticky notes and tags” by Adrian van Leen via OpenPhoto.
Love your work but hate the “job” portion of it? You know, quoting scope of work, dealing with fees, and getting paid? If so, check out Milton Gregory Grew’s great article about setting fees that can realistically account for your overhead and other indirect costs, “The Business of Architecture (Oxymoron?)”.
Of the tips Greg discusses, step #2, “Put it in writing” is key, as I’ve discussed earlier here.
Moreover, for fee issues, a written agreement is the gold standard. In a written agreement you can even account for collection costs, higher interest charges, and “reasonable” attorney fees if you later (heaven forbid) have to sue a (former) client for payment of services. Without a written agreement, you are stuck with statutory limits on what you can recover.
As they say, an ounce of prevention is worth a pound of cure.
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Photo “Gold1oz” by Olegvolk via Creative Commons Attribution 2.5 license.
Ed. note: This is the second of a two part series on Universal Design by Guest Post author Dick Duncan. “Universal Design-Part 1: Beyond ADA and Fair Housing,” can be found here.
Current Challenges
Partially due to success of accessibility implementation and compliance in recent years, the term “accessibility” and the ideas about an “accessible” built environment are commonly known, if imperfectly understood. For example, to many people “fully accessible” means primarily usable by people who use wheelchairs, losing the inclusionary aspect of responding to the needs of people with other disabling conditions. One result of this pervasive consciousness about and misunderstandings of accessibility is confusion about the nature of universal design.
Common myths include:
There is legitimate confusion between universal design and more similar concepts or concepts, such as visitability (an US-based approach, limited to housing, that promotes limited usability features), Design for All (a similar idea to universal design, principally in use in Europe), Life Span Design (used in the US, principally reflecting age sensitive design), Transgenerational Design (an idea formed in the US that good design now must accommodate people of all ages), Flex Housing (developed by Canadian Housing and Mortgage that includes features of accessibility as well as other innovative design ideas), and Lifetime Homes (developed in the UK, broadly applied standards with specific usability features). The variety of concepts and common misunderstandings regarding universal design highlights the need for continued educational activities and suggests the need for international communication and collaboration.
An important component of a universal approach to design challenges focuses on the process of design. In this manner, an appropriate outcome can be assured through the process itself. Termed ‘universal designing’ , a broad and inclusive design process includes many perspectives and is mindful of the ergonomic, human factors, and social equity considerations.
A national effort is now underway to develop voluntary universal design standards that will cover all domains of the built environment, initially retail, community and housing. The Mace Institute is an active participant with the Global Universal Design Commission (GUDC) and AARP in efforts to bring these new standards to life over the next several years.
To obtain excellent education on UD issues, consider attending Universal Design Summit 4 this fall. The Summit, entitled “Creating Livable Homes & Communities” will be held October 10-12, 2010 in St. Louis, Missouri.
To learn more about the RL Mace Universal Design Institute, download this Executive Summary (pdf) or visit the UDI website.