Construction Litigation – A Contractor's Perspective

Contractors and other professionals who work in some aspect of the construction industry may find themselves dealing with litigation for multiple reasons. This can happen with construction projects in Port St. Lucie, Stuart, and surrounding areas, where construction projects happen frequently.

 Sometimes there are issues with a client who hasn’t paid or is claiming a job was done improperly. Other times, a client may change their mind and want large changes done with no additional time or financial responsibility devoted to the project. There may also be difficulties if another party’s property is encroaching on the area where the contractor is trying to build. A lawsuit may be filed against the contractor after a job is complete if they believe they’ve just found a defect. All of these situations may lead a contractor to seek the counsel of a Florida construction litigation attorney to assist them with their issue.

Notice Requirements

There are many notice requirements to keep up with when you work as a contractor in construction projects. If your contract is with someone other than the property owner, then you may need to serve a Notice to Owner (NTO) before beginning work. This notice also serves other purposes, like preventing future problems—for example, if a tenant hires you to do a job without getting the owner’s permission first. You don’t want to be several weeks into the project when the landlord shows up and wants to know just what you’re doing to their property.

The deadline to serve an NTO is 45 days from “first furnishing,” which means the first furnishing of labor or materials related to the project. Some contractors who create specialty material for certain types of projects may also have 45 days from the date they begin working on the material. It is always better to err on the side of early rather than late when it comes to sending an NTO. If it’s served too late, you can lose your rights to place a lien on the project later. 

Who Else Gets an NTO Besides the Owner?

Florida law specifies that everyone “up the payment chain” should get a NTO. So, if you are a subcontractor, you should send an NTO to both the property owner and the main contractor. 

There’s another Florida law that specifies project owners need to file a “Notice of Commencement” before work begins on a project. After this has been done, the owner may appoint an “owner designee” to receive future notices, including NTOs. In most cases, if there is such an owner designee, you can just send them the NTO. However, there are some interesting rules about sending NTOs to designees that may trip up contractors in some situations. It’s a good idea to check with your Florida construction attorney to make sure you are doing things correctly.

Do I Have to Deliver an NTO in Person?

While the NOT can be served in person, it is typically sent by registered or certified mail to ensure you have proof it was received (other means of mail delivery are available).  If you cannot personally serve or via mail, you may be able to just post the NTO on the job site. 

The Importance of Having a Written Contract with the Project Owner

There are many ways that contractors can run into legal difficulties. One thing that we hear a lot is when a contractor does a small job, doesn’t think a contract is necessary for this, and then runs into some disagreement with the owner. Often, these things can snowball. In some cases, the owner may get mad and decide to stiff the contractor on a bigger job, even if they have a contract on that one.

In other situations, the contractor might have a contract for a job of any size, and then challenges arise. Maybe the owner is unhappy with how the project turned out, even though the contract met all their specifications. (This happens a lot.) Or, maybe the owner nitpicks something as an excuse not to pay all or some of what they owe the contractor. (“Well, I agreed to pay that amount when I thought you could get the trim right…”) Or, they might pay for the job, then later experience some difficulty on the property and decide it’s somehow the contractor’s fault. In that case, they may decide to sue the contractor for a defect.

In all of these situations, it’s immensely helpful if the contractor has a written contract with the owner. With a written contract, if an issue arises, the contractor can go over this contract with their Florida construction attorney and figure out how best to solve the issue. However, sometimes poorly-written contracts don’t cover all the issues that may arise. Some things may be vague or unclear, and this can spell trouble if you need to take your case to court. This may occur because the owner proposed the contract, and the contractor did not have the help of a construction attorney before signing it. But a more common situation is the one where a contractor is just starting out and doesn’t know much about contracts so they find one online that looks right, fill in some blanks, and give it to the customer to sign. 

Unfortunately, the problem with just grabbing a form off the internet is that it may not be the right one for the type of work or project you’re doing, it may not meet all requirements of your particular state, it may not address all the issues that may come up as you are working on this project, or, the language may be intentionally broad or vague, because it is meant to be used by a wide array of people for a wide array of projects. For any of these described issues, or many others that may arise in construction matters, you may later have difficulty imposing a lien, claiming your case in court, or getting the relief you seek in court.  That’s why is important to get the assistance of a skilled construction litigation attorney from the onset and throughout your various projects. 

The best thing to do is to consult an attorney before you start signing contracts with clients. Your attorney may be able to draft a template you can use for multiple jobs, or recommend an individualized contract for each client based on the specifics of your business. Although you may be eager to get started, this small investment at the outset can save you time and money later on if a disagreement occurs. You can also read about Construction Litigation Attorney – A Consumer Perspective

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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