Tag Archives: construction

Lien Law Changes: Bad for Designers?

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UPDATE:  Designers may file Notices of Commencement when they start their work, which should eliminate or significantly reduce the priority date concerns expressed below.  See this post for more details.  — mdb  3/4/11

gavel, law books, & hard hat

The work of the NC Bar Association’s Construction Section Lien Law committee continues, and it may drastically change the lien law landscape for architects and engineers.

On February 18, the Construction Law Section Council, the governing body of the Section, voted 11-4 to accept the latest draft version which must still be approved by the NC Bar Board of Governors.  After approval by the Board, it will then need sponsorship at the General Assembly.   The lien law changes have divided the construction industry – some believe the changes are beneficial, while others worry about new requirements contained within the bill.

Of particular note for architects and engineers, the new lien law envisions a new Notice of Commencement which would then act as the first date of service for everybody who works on the project.  The new law would give almost everyone on a project the same priority date.  Almost all liens would then relate to and take effect as of the Notice of Commencement date.

In other words, designers and others who perform work very early in the project would have no stronger lien rights than those who perform work at the very end of the project.  If there are insufficient funds to satisfy all of the liens, the net result is that architects and engineers will have to share pro rata will all contractors and subcontractors from the owner’s assets.   (And, to answer a question posed to me the other day, yes, architects and engineers have lien rights on projects in North Carolina!)

Is there a way around this for designers and other early performers? Yes and no.  One way a designer can protect his priority is by filing a Claim of Lien before the Owner files the Notice of Commencement.  (See section 44A-10 of the new draft bill).  However, as you can imagine, filing a Claim of Lien before construction has even started is likely to be frowned upon by the Owner.  Furthermore, the lien would have to be timely perfected, which involves actually suing the Owner.  Obviously, use of the Claim of Lien to beat the proposed Notice of Commencement date will have limited, if any, practical use for construction professionals who are working on a project and want to maintain a good relationship with the Owner.

There are many good things in the new bill: a way to streamline payment issues to ensure subcontractors are timely paid when the general contractor is paid, for example, as well as an attempt to provide lien rights to parties even after a bankruptcy filing, which had been made impossible by recent cases.   However, the priority issue is definitely bad for designers, as well as others who do their work very early in the project.

Comments, questions, or thoughts about the proposed changes?  Let me know in the comment section, below.  And sign up for regular email updates from this Blog, so you never miss a post.

LEED Multi-Family Tour (Tue Tip)

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Want to peek into what is scheduled to become the first LEED certified multi-family housing complex in Wake County?  The Triangle USGBC (US Green Building Council) will be hosting a “Walk-n-Talk” at  Highland Terrace in Cary, which is part of DHIC, Inc., the Triangle area’s oldest and largest non-profit housing organization.

The issues presented will include:

  • installing optimum mechanical systems;
  • specific plumbing and water conservation feature;
  • building features that insure healthy indoor air quality for residents;
  • the interface between LEED certification and the current Fire Code; and
  • other challenges related to following LEED Homes guidelines in a multi-story, corridor building with interior apartment entrances.

NC Triangle Logo

Details of the Event:

When:  March 10th, 2011    4-6pm

Where:  Highland Terrace, Cary, North Carolina

Fees:  Free (members)/$10 (nonmembers); Pre-registration is required.

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Best Construction Blog: Please vote!

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favor sign

Can I ask a favor of you?  If you enjoy my blog, please take a moment to vote for it in the “Best Construction Blog” competition.  The competition is by Mark Buckson, of  Construction Marketing Ideas. 

To vote, click here and select “Construction Law in North Carolina” (this blog).  You also have the opportunity to vote for many other fine construction blogs at the same time, including some blogs you will recognize from my blogroll such as those by Chris Hill, Tim Hughes, and Ryan Bowers.  You can vote for them or the other fine blogs there also, but you must  should  might consider voting for me.

Thanks in advance!

PS: To those worried about the legality of my “get out the vote” campgain, rest assured that Mark encourages everyone to campaign for votes!

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Photo (c) Washington & Jefferson College ([email protected]) via Creative Commons License.

Engineering flaws cited in Oil Spill Report

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Horizon explosion

The Chief Counsel’s Report on the BP Deepwater Horizon Oil Spill and Offshore Drilling has been released.  Following on the heals of the January National  Commission report to the President, the Chief Counsel’s report “provides damning evidence that preventable engineering and management mistakes—rather than mechanical failings—were the primary cause of the Deepwater Horizon rig explosion last spring,” notes ENR’s Pam Hunter.

Among the Technical Findings, the Report states that the root cause of the failure was that the cement that BP and Halliburton pumped to the bottom of the well did not seal off hydrocarbons in the formation.  The report acknowledges several factors which may have increased the risk of cement failure, including:

  • drilling complications forced engineers to plan a finesse  cement job that called for, among other things, a low overall volume of cement.
  • the cement slurry itself was poorly designed—some of Halliburton‘s own internal tests showed that the design was unstable, and subsequent testing by the Chief Counsel‘s team raised further concerns.
  • BP‘s temporary abandonment procedures—finalized only at the last minute—called for rig personnel to severely underbalance the well before installing any additional barriers to back up the cement job.

Among the Management Findings, the Report states:

  • BP did not adequately identify or address risks created by last-minute changes to well design and procedures. BP changed its plans repeatedly and up to the very last minute, sometimes causing confusion and frustration among BP employees and rig personnel.
  • Halliburton appears to have done little to supervise the work of its key cementing personnel and does not appear to have meaningfully reviewed data that should have prompted it to redesign the Macondo cement slurry.
  • Transocean did not adequately train its employees in emergency procedures and kick detection, and did not inform them of crucial lessons learned from a similar and recent near-miss drilling incident.

Legal Status?  The lawsuits that will be flowing (pardon the pun) from this disaster will be extreme.  Expect to see possible class action certifications requested for some of those that were suffered damages.  In any lawsuit related to the spill, the report by the Chief Counsel will, undoubtedly, be Exhibit A.

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Photo credit:  Richard Sullivan, via Wikimedia/Creative Commons license.

Bayonne Bridge: Herculean Engineering Effort (Tue Tip)

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Map of Bayonne (Click on image to enlarge)

 Incredible feets of engineering are being planned for at the $1 billion-dollar Bayonne Bridge height raising project,  a project of the Port Authority of New York and New Jersey.  Engineers plan to raise the road from 151 to 215 feet above the Kill van Kull while simultaneously keeping the bridge open to traffic, a measure some are calling  “a Herculean feat of engineering and construction.”  The project is required to accommodate larger container ships (especially those arriving after the widening of the Panama Canal in 2014) to ensure continued viability of the port industry, and raising of the roadbed is the quickest and cheapest solution to the clearance issue. 

“It’s truly an exciting engineering project, by all means,” said Peter Zipf, the Port Authority’s chief engineer. “It’s a completely challenging project, and that’s an engineer’s delight. It’s coming up with a regional solution to a regional need.”   As an engineering precedent, Zipf said the Bayonne project will be the first time a replacement roadbed is constructed above the old one, with traffic remaining open, before the original structure is removed.

bridge construction rendering (Click on image to enlarge)

According to nj.com, during construction, the two inner lanes will be closed to traffic and used as a staging area where a crane will likely be used to hoist a series of 84-foot-wide girders into place, forming the steel structure underpinning the new roadway. Like the original, the new roadbed will be suspended by steel cables from the bridge’s original 79-year-old arch.  The two existing outer lanes will remain open, shielded from the work overhead, providing one traffic lane in each direction. To rise to the level of the higher roadbed, Zipf said the bridge approaches will be made slightly steeper and longer, constructed in a similar method from staging areas on the original approaches.

About the Bridge

When the $13 million Bayonne Bridge opened on November 15, 1931, at 1,675 feet it had become the longest steel-arch bridge in the world, an honor it held for the next 45 years.

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Thoughts on the engineering task ahead of them in maintaining traffic while raising the bridge?  Thoughts on possible legal implications should the project not go as planned?  Sign up for email delivery of the Blog’s posts to your inbox to learn the latest news concerning architects, engineers, designers, and other construction professionals.

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Photo credits: Map via Wikipedia/Creative Commons License; Plan sketch via Frank Cecala & Andre Malok/The Star Ledger.