Tag Archives: contractor

One Stop Shopping: the Green Building Directory (Tue Tip)

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design of green lighthouse in France

A green lighthouse. Literally! 

 Wouldn’t it be nice to have a handy resource of “green” builders, tradesmen, and material suppliers when you are designing your next project or writing your next set of specifications?  Check out the Western North Carolina Green Building Directory, where you’ll find all this and more.

Know of a resource for design professionals?  Drop me a line and I’ll feature it in an upcoming “Tuesday Tip.”  And, sign up for email delivery of all blog posts to your inbox (through the subscription box at the top of the page) so you’ll never miss out on practice tips!

Photo:  (c) Olivier French via Creative Commons license.   Post updated 3/9/2017.

Follow your Change Order Requirements

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 check markIt is extremely important that you follow your written contract requirements.  No where is this more evident than in the change order process.

Most contracts have an explicit provision for the payment for additional work– and they generally require a written, signed change order (or change directive) before the work is performed.  Can you get by with verbal agreements for additional work? Sometimes yes, sometimes no.  Will it be much harder to get paid for additional services without a signed change order? You bet.  So why put yourself through that trouble?

Often times parties begin to “waive” formal requirements for written change orders, and construction projects are often on tight deadlines where stopping work to get a fully executed change order would bog down the schedule.  However, you run the risk of throwing yourself on the mercy of the Court when you don’t play by the contract rules.

A new case out of the Eastern District of Virginia demonstrates this fact very clearly.  In Artistic Stone v. Safeco, 2010 WL 2977894 (E.D.Va July 27, 2010), the Court held that the requirement that change orders be in writing was to be strictly construed and the subcontractor in that case could not recover for verbal change orders that violated the written change order requirement.  The Court held that where there is a method to ensure recovery of additional extra work in the written contract, the subcontractor could not recover additional money when it failed to follow that method.

“Written change order requirements maintain order and predictability in the construction business, and are meant ‘to avoid subsequent disagreement, and prevent just such a controversy as has arisen in this case.  For this reason, ‘where there is a method under the contract by which a party can insure the recovery of the cost of extra work, that party is not entitled to recovery where it fails to follow that method.'” Artistic Stone Crafters at 5.   [Internal citations omitted.]

A North Carolina court would likely concur.

To ensure you can fully recover for extra work, make sure it is authorized.  Follow the contract.  If circumstances make it so you cannot always follow the contract terms, document the situation as best as you can.  A follow-up email, confirming a verbal change order, would at least provide written evidence you can present in Court, should it come to that.  Otherwise, arguments can and will be made that the person who gave the change order wasn’t authorized to do so, and you may be stuck with no recovery for the extra work.

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Photo “white check mark on blue- acrylic on canvas” by kylemac via Flickr via Creative Commons license.

Exception to the Statute of Repose?

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Hold the phone– didn’t I just say last week that the statute of repose was basically an absolute bar to any action after 6 years?  Why, yes, yes I did.

BUT it too has exceptions!  (If you’ve learned anything from my rantings, I hope it is that there is always an exception to the rule).  In a recent Court of Appeals case, the application of the statute of repose was called into question.

In Dawson v. N.C. Dept of Environment and Natural Resources (June 15, 2010), a couple bought land only after inquiring of the Person County health department to determine that the lots perked.  Based on a 1989 letter issued by the health department stating that the lots perked, the couple bought the land.  In 2000 (that is, 11 years later!), the couple applied for building permits only to learn from DENR that the land was not suitable for building.

The couple sued DENR under a negligence theory, and DENR argued the time bar of the 6 year statute of repose.  In its decision, the court held that because the 1989 letter was not based on an improvement to real property, the statute of repose was not applicable.  The Court indicated that, had the county inspector been inspecting an existing septic system, their decision may have been different.

Moral of the story? Just because you think you have a good defense, don’t forget that there is always an exception to the rule or, rather, there are many times when the shoe looks like it fits, but it really doesn’t.  Be careful– blisters are painful!

boot

Photo “Dakota Composite Dual Toe” by Bottinex via Flickr via Creative Commons Attribution-Noncommercial-Sharealike license 

Tools in your Toolbox

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A fun link for “over the hump” day.

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………….

tool box

Tomorrow, back to the law part of the blog when we’ll be discussing, by popular demand,  the Statute of Repose.

 

“Substantial Completion” on the Construction Project: How is it defined? (Law note)

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Substantial completion is another one of those “terms of art” that lawyers love.  What does it mean when your project is substantially complete? If you are an owner, you really are only interested in one thing: when is it done? Right? Well, not exactly.  Particularly on larger projects, there may be a big difference between when a project is substantially complete and when it is finally complete, so it’s good to know what the difference is and what your contract provides.

Substantial completion is generally a defined term in a contract, but regardless of exactly how it is defined in essence it means that the owner can use the building as intended.  It usually indicates that only minor, punch list type work remains.

In the AIA general conditions, substantial completion is defined:

 § A.9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or use the Work or a portion thereof for its intended use.

While this is standard language found in most form contracts, it can–and should–be altered to fit any unusual circumstances you anticipate on your project.

Note that the AIA general conditions do not state that either a temporary or permanent certificate of occupancy must be issued for substantial completion to occur.  For example, in the case of an office building, once the building is able to be used for upfitting purposes by the owner it is substantially complete, even if the building is not yet able to be occupied.  This can be signficant if the owner is self-performing much of the upfit work, and the acceptable degree of finished work may be something altered by the parties at the time of contract negotiation.

Whatever the defined date of substantial completion in your contract, however, it is extremely important.  This is the date that triggers:

  • retainage release
  • the warranty period
  • determination of any actual or liquidated damages
  • the running of the statute of limitations and repose

Therefore, it is important that you read your contract and understand what the date of substantial completion will be for each of your projects.

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Photo courtesy of constructionphotographs.com.