Construction Litigation Attorney – A Consumer Perspective

Construction litigation can arise from many situations. Property owners may have disagreements with their own contractors, with owners of neighboring property, or the local or state government. There may also be issues with contracts or construction defects that appear after the work has been approved. Payment or collection challenges and construction liens may also lead businesses and individuals to the courtroom. An experienced Florida construction litigation attorney can help you address these difficulties in court.

What is the Role of the Construction Litigation Attorney?

Your construction litigation lawyer could represent you or your business in any construction litigation matter, from liens to construction defects, to issues with neighbors or government. They will go over the case with you, and then they may conduct a case investigation to determine if there is enough evidence to move forward. This may involves gathering evidence and documents, and studying the events that led up to the conflict.

If you are the plaintiff, or the person bringing the complaint, the next step may likely be to file a pleading, such as a summons and complaint against the other party, to begin your lawsuit. If you are a defendant, you’ve likely already received one of these from the other side. In this case, your lawyer would look into the allegations made against you and draft any necessary responses in your defense.

As the case continues, both sides go through the process of discovery, where both/all parties exchange necessary information. Sometimes your lawyer may discover things that present challenges, but they may also find out information that helps your case. Even if difficulties do come to light, it’s better to know about them sooner so they can be addressed than to be surprised. As part of this process, your attorney may file requests for production (asking the other side to produce something), requests for admission (asking for evidence to be admitted in court), and take depositions from witnesses.  Documentation and testimony may also be sought from third parties.

In the pre-trial phase following discovery, your Port St. Lucie construction litigation lawyer will prepare for trial by acquiring expert witnesses to testify, mediate the case, attending pre-trial conferences, and conducting other necessary steps relating to your case. Sometimes, parties are able to work things out or negotiate a settlement in this phase. If the other party makes an offer, your attorney will go over it with you and answer any questions so you can make an informed decision.

If no agreement is made, you will proceed to trial, where your attorney would work hard to advocate for you. Even as the trial continues, settlement between parties is still possible. Sometimes, if one side sees that things are not going their way in court, they may be more willing to make a deal. If this does not happen, then a decision will be made by either a jury or a judge.

Here are some common types of cases your construction litigation attorney may be able to help you with:

Construction Liens

A lien could be placed on a property where a contractor performed work if they believe they haven’t been paid as promised. This may mean that they haven’t been paid at all, or received less than the full amount. Disagreements often happen when a contractor files a lien on the property. An owner may claim work wasn’t finished or wasn’t done correctly when it was. On the other hand, a contractor may actually fail to do or finish the work, or claim it was done well when it wasn’t. 

There are some things that need to happen in order to preserve certain rights, as a contractor or as a homeowner. One of those is the posting of a Notice of Commencement on the job site before work begins. This document includes a description of the work being done, the property owner’s name, where the property is located, and the amount of the bond, if there is one. If you don’t know how to write such a notice, your Florida construction attorney can help you. Remember that it’s very important to post this notice because, if not, or if the information on the notice is wrong, you could end up been prevented from pursuing certain rights.

It’s also a good idea to ask you contractor for releases of lien from anyone who serves a Notice to Owner. This is necessary because it means workers can’t place a lien on a property because the general contractor failed to pay them (however, if you are a worker in this type of situation, you can still take legal action against the general contractor so that you can be paid). A Florida construction attorney will be able to explain your options.

What If I’m A Contractor Trying to Get a Client to Pay Me?

This is another possible cause of construction litigation. When requesting payment from the property owner, you should include a sworn certification letting them know the following:

  • There are no outstanding liens from suppliers, subcontractors, etc., as of the date of the request.
  • All bills that are considered due and payable have been taken care of, or are included in the request.
  • Other than the above bills included with the request, there are no known reasons for anyone to file a lien on the property.

What If I Have Sent Several Requests and Still Haven’t Been Paid?

This is the point when many contractors seek an attorney. In general, it’s better to contact a lawyer sooner rather than later to ensure you’ve covered everything that needs to take place in order to preserve your rights, including your lien rights. 

If you are a subcontractor and did not contract directly with the property owner, you will need to serve a Notice to Owner within a specific period of time. When this doesn’t happen, the contractor will not be able to file a lien on the property. This Notice to Owner should have the lienor’s name, a description of the property and services or materials delivered, and a statutory warning statement. It should be sent to all owners named in the Notice of Commencement.

If you are still getting nowhere after sending several requests, your attorney may be able to help. In some cases, getting a letter from a law firm will nudge a property owner to pay a bill they might have otherwise ignored. The threat of legal action and being tied up in court may prove more bothersome than an unpaid bill. Some lawyers are also able to perform debt collection services. However, if the owner still isn’t budging, your attorney would help you prepare to go to court. 

Remember that you may need to act quickly. You only have a limited amount of time to file a lien after finishing work, services, or delivery of materials on a property. Keep in mind that if the owner asked you to correct any problems or defects after you were finished, this may affect the time-frame limitations. 

Do I Need a Written Contract to Place a Construction Lien?

Not always.  The court will sometimes recognize verbal agreements, but we still strongly recommend you have a written contract. A properly worded written contract could save you time and money on disagreements you may have with the property owner. If you do go to court, it will be easier to get exactly what you’re owed if it’s spelled out in a contract.

Can I Place a Lien on a Public Property I Worked On?

No, unfortunately liens are only for private property. However, you may be able to file a bond claim on a public property. Your attorney can tell you if this is a good option for you.

Construction Defects

These can occur in many ways. In Florida, common defects include flooding caused by poor construction or improper drainage, mold issues, foundation damage, defective heating or cooling systems, or roof problems. However, defects may also occur in many other ways.

A construction defect can be devastating for both businesses and personal homes. For example, say you build a new hotel in Stuart, and the freshly-installed HVAC system fails opening weekend, leaving your guests hot and searching for a new place to stay. You could lose a lot of money, and not just that weekend—this could shape guests’ opinions of your hotel for years. Now not only are you out the money for your HVAC system, you could have lost far more in opportunities.

Express and Implied Warranties

Under Florida law, there are two types of warranties in construction work. An express warranty is an official guarantee about the quality or use of a finished product, which is typically included in a sales contract. In our hotel example, an express warranty might say that the new HVAC system is guaranteed to work correctly for six months or a year, and that any repairs required during this time will be covered by the contractor or manufacturer (there is also usually a long list of situations in which repairs are not covered, such as accidental or intentional damage, hurricane or other natural disaster damage, etc.).

An implied warranty is not a guarantee the contractor or manufacturer explicitly makes, but rather an implied understanding that if someone sells a product or service, it should do whatever the customer was promised it would do. Following the prior example, if you hired someone to install an HVAC system in your new hotel, you clearly expected it to work. There is an implied guarantee that the HVAC system will actually cool the building instead of just sitting there in the walls and doing nothing.

However, not all cases are clear-cut. Often, there is disagreement between the purchaser and the contractor about what the product or service was supposed to do. Maybe the HVAC system technically works—it turns on and moves the air around and cools the temperature a little, but it doesn’t keep the building at the desired temperature, and guests are still hot. The contractor might say they fulfilled an express or implied guarantee, but you might have believed the system would work much more effectively than it does. In a situation like this, your Florida construction defect lawyer will go over the details with you and evaluate your case. If the difference between your expectations and what could reasonably be implied from the purchase of an HVAC system are hard to prove in court, you may want to discuss other options. 

In some cases, your attorney may be able to negotiate with the contractor. After all, they will have to spend time and money in court defending themselves, too. The other party may want to mitigate their risk by settling with you out of court. For example, maybe they can repair or replace the defective HVAC unit at no extra charge, and make a small settlement to cover your advertising costs for a second reopening. You may feel you’re entitled to more money, but after you consider the time and money that goes into a courtroom case, the settlement might be a better option.

If you don’t want to settle or can’t come to terms with the other party, your attorney will represent you in court. They will explain the express and/or implied guarantees and how the contractor’s work or product failed to live up to these. Additionally, they will question witnesses and present any other evidence you have of the failed product or service, and its effects on your business.

Construction Delays

Another issue with construction may arise when there are significant delays, which can again cost the project owner not only time but also money and business opportunities.

Sometimes people think they have no legal recourse for such delays because their contract says something about “no damages for delay.” However, it’s important to understand that there may be exceptions under Florida state law. “No damages for delay” may not mean that the contractor can wait two years to start your project when you were expecting them to start next week. State law typically finds these delay clauses unenforceable if the delay was caused by fraud, bad faith, or active interference. Likewise, if the contractor or another party took either intentional or negligent actions that caused an “unreasonable” delay, your lawyer may be able to argue that you deserve financial relief. If you’re unsure whether or not you have a construction delay case, a Florida construction litigation attorney can go over it with you and explain your options.

Malpractice by Architects, Engineers, or Other Design Professionals

State law requires architects, engineers, and other design professionals involved in construction to follow regulations and practice care in working for their clients. If one of these professionals made a mistake that caused you or your business injury, you may have a case against them. These are some common reasons for malpractice suits against construction professionals:

  • Design defects. In this case, the problem isn’t that the contractor didn’t do the work as specified by the designer, but that the design itself was faulty or caused problems once built.
  • Non-compliance with building, permitting, or zoning laws. There are both state and local laws to consider in these situations, and most project owners who aren’t in the construction business themselves don’t know what half of them are. The average person who hires an architect or other professional is trusting that contractor to ensure they do things by the book.
  • Underestimating costs or expenses, or overbilling. This is a very common scenario: Josh hires an architectural and engineering firm to build a new dry-cleaning store for his chain. The firm estimates the project will cost $100,000. A few months into the project, he’s told they need additional materials that may cost a few thousand extra. This seems reasonable given the project’s size. But when the project is completed after six months, Josh is adding the bills and discovers the project ended up costing almost $170,000, far more than he budgeted. In many cases, people like Josh may have a case against the firm that underestimated costs.
  • Non-compliance with specifications or plans the client approved. Sometimes the project has been finished and the client then realizes it was done wrong. The designer or contractor may believe it was done to plan, or say that the client’s plans couldn’t be done for one reason or another. In some cases, this may be true, but if there is a reason the approved plans can’t be finished—such as safety, impracticality, or local zoning laws—the professional’s job should be to explain this to the client before proceeding.
  • Not addressing issues in a timely way. If the designer failed to bring a challenge to your attention, or did not address issues you brought up, you may also have a case.
  • Not properly supervising a job site. The architect, engineer, or designer may need to keep an eye on the site as work proceeds in case the construction crew have misunderstood the plans or are making some mistake as they build. In some cases, you may have a case against both contractors—the construction supervisor was supposed to ensure the plans were followed, but the architect, engineer, etc., should have visited the site frequently to ensure the supervisor was also following plans.
  • Unreasonable delays causing financial losses. If your project was held up not because the construction crew never started but because the designer didn’t get plans done or didn’t address issues in time, you may have a case.
  • Misrepresentation or omission of crucial facts. If a design professional forgot to tell you an important feature of your building couldn’t be done or that it would look significantly different than you’d planned, this can also cause problems.

Is There a Statute of Limitations for Construction Lawsuits?

Yes. You should contact an attorney as soon as possible to understand all your options. In most cases, you have four years to file a lawsuit after the most recent of the following occurs:

  • The date the owner took actual possession of the newly constructed or reconstructed property.
  • The date a certificate of occupancy was issued.
  • The date construction was abandoned if it was not finished for any reason.
  • The date the contract between the contractor and contractee was completed or terminated.

However, there are some exceptions. If the lawsuit is based on a latent or hidden defect, something that was not immediately apparent to the owner when the project was finished, then the statute of limitations starts when the owner becomes aware of the defect. Or, in some cases, the court may rule it begins when the owner should have been aware of the defect if they had practiced due diligence.

Is There Anything I Can Do to Reduce My Risk of Construction Litigation?

Yes. You should hire an experienced Florida construction attorney right away. They should be able to go over all contracts you’re considering signing and bring any issues to your attention. If necessary, they may be able to negotiate with the other parties so you can get better terms. Your attorney can also explain any risk factors you may have, and your options for reducing these. In some cases, negotiating to add, remove, or change certain clauses, phrases, or even words may help mitigate the risk.

Your lawyer will also analyze the terms of the contract, and help you understand if it is written unfairly in the other party’s favor. Often, people who do not have a legal background are unsure if a contract is overly aggressive or problematic in other ways. 

Once the contract is signed, your attorney will be there for you in the event that the other party has not lived up to their end, or any other legal issues arise in construction. They can also ensure you are up-to-date on zoning laws and help you avoid issues with local government. If there are difficulties with neighbors or encroachments, they can advise you on these as well.

Sometimes, people think they don’t need a construction litigation attorney because they aren’t having any disputes… yet. Or, perhaps a friend or colleague completed a similar project and never mentioned needing a construction lawyer. However, many difficulties can be headed off by having appropriate legal representation before there’s a disagreement. You can read Florida Construction Law Compendium here.

If you need assistance with construction law issues, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. You can also check out our Construction Litigation Practice Area for more information. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida. 

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