Malka & Kravitz, P.A. – Your Construction Law FirmFort Lauderdale Florida Construction Law Attorney | South Florida Corporate Mediation Lawyer2024-02-27T15:09:35Zhttps://www.mkpalaw.com/feed/atom/WordPress/wp-content/uploads/sites/1603378/2021/06/cropped-malika-kravitz-site-icon-32x32.pngOn Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479762024-02-27T15:09:35Z2024-02-26T15:04:28Zthey are in breach of the contract. When this happens, there are a few different ways you can handle the breach.
Informal resolution
First, it is usually best to try to informally resolve the breach. This can be as simple as having a conversation with the other party and figuring out a way to solve the problem.
Sometimes one party is technically in breach of the contract, but the reason is due to circumstances beyond their control.
For example, your contract could require a certain type of material to be used, but that material might no longer be available, causing a breach of contract.
A discussion about alternative materials could result in an agreement to use a different material, solving the breach problem.
A breach is sometimes the result of a simple mistake or accident. The contract might require work to be completed on the 15th day of the month and it might be completed on the 16th because one party got the date wrong.
You can both work out how you want to handle the one-day delay, such as modifying the total cost of the project.
Alternative dispute resolution
Informal resolution does not always work and you may need to move on to other options. If your construction contracts do not already contain an alternative dispute resolution clause, they should.
This clause requires parties to participate in alternative dispute resolution, such as arbitration or mediation, before pursuing any legal action.
You may be unable to solve the problem informally because one party has suffered damages and you cannot agree on a resolution. You might want to be paid for the damages while the other party may want a chance to fix the problem, or perhaps you disagree on the number of damages to be paid.
Mediation is essentially the same as informal resolution, only with the help of a mediator. The mediator listens to each side and provides guidance and suggestions for resolution.
Arbitration is more formal than mediation but less formal than a court proceeding. In arbitration, each side presents their case to an arbitrator or arbitration panel, who decides the outcome.
Courtroom litigation
When you cannot solve the breach problem through informal resolution or alternative dispute resolution, filing a lawsuit is your remaining option.
Before you file your lawsuit, it is important to know your chances of success and the likely outcome. A court could award money damages or specific performance, which is ordering the other side to perform their duties under the contract.
The award depends on the circumstances. Sometimes specific performance is not possible, so money damages might be the only option.]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479742024-02-22T17:08:14Z2024-02-21T17:07:08Zconstruction issue or dispute in Florida and elsewhere could arise because of disagreements during the negotiation of a contract, a breach of a contract, defects, licensing issues, insurance issues, payment disputes and the like. Because a construction dispute could impact the project by delaying it or preventing its completion, most seek to resolve the matter as effectively and efficiently as possible.
Construction disputes
At Malka & Kravitz, P.A., our law firm is specialized in construction law, making our attorneys experts in the field. Despite never working on a construction site, our legal team has in-depth knowledge regarding all facets of a construction project. This allows us to provide guidance and assistance that is specific to each client.
Because we have encountered a wide range of construction law matters, we understand that issues could arise at any phase of the project. Not only does our law firm have extensive experience resolving construction law matters, but we also have a track record for helping our clients avoid litigation.
Proactive resolutions
Whether you are dealing with construction defects, a breach of contract, negotiation issues, drafting a construction contract, licensing issues, ensuring Florida statutory compliance, construction insurance matters or issues involving payment bonds or performance bonds, there are options to resolve these matters. By understanding your rights and the details of the matter, it is possible to negotiate, mediate or arbitrate for a resolution.
While avoiding litigation is ideal for most, not all matters can reach a resolution outside of court. As such, it is important to understand when this process is necessary and what steps to take.
In the beginning stages, it is possible to be proactive when it comes to avoiding litigation. A legal professional can help you understand what you can do now to avoid legal issues in the future. No matter the issue or level of complexity of the construction law matter, it is important to understand that you have options, and you can take steps to protect your rights in the matter.]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479732024-02-06T06:04:55Z2024-02-06T06:04:55Zstatute that sets this deadline also requires that the party claiming damage as the result of the defect provide written notice to the contractor at least 60 days prior to commencing the lawsuit. The state’s statute of repose is not so well understood.
How does the statute of limitation work?
The Florida statute of limitation requires that a claim alleging defect in a construction project must be made within 4 years after completion of the contractor’s work. (The period is 10 years for claims arising out of latent defects.)
For example, a claim for a defect in electrical work must be brought within 4 years after completion of the contractor’s work, even if the work on the project continues.
Moreover, the party alleging the existence of the defect must give written notice of the defect to the contractor at least 60 days before the lawsuit is begun.
What is the statute of repose?
The statute of repose also imposes a time limit on claims for defects in construction. In this case, the limit is 10 years from the date on which the project was substantially completed.
The big difference between the statute of limitation and the statute of repose is that the statutory limitation period applies only to individual claims, whereas the statute of repose applies to all claims that may be brought for defects in a single project.
Once the repose period has expired for a given project, no claims can be made alleging defects in the construction of that project.
What kind of action by the owner will satisfy the deadline?
In 2019, the Florida legislature amended the deadlines to require that the notice of claim, even in timely served on the contractor, will not satisfy the statute of limitation or repose.
The lawsuit must be commenced within the 4-year or 10-year period, whichever is applicable.
Anyone considering making a claim for a construction defect must take great care to act within the statutory deadlines.
The advice of an experienced construction attorney can be an enormous help in avoiding a destructive mistake.
]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479662023-12-19T04:32:09Z2023-12-13T04:31:02ZPayment and performance bonds
Payment and performance bonds are surety bonds. They are used to ensure that a project is fully completed.
A payment bond guarantees that the construction contractor will pay its subcontractors, workers and suppliers and that the project owner will not be financially responsible for those payments if the construction contractor does not pay. If that happens, the company that issued the bond will pay any money owed.
A performance bond guarantees that the construction contractor will finish the project according to the quality standards and performance expectations outlined in the contract. If these obligations are not met, the company that issued the bond will pay the project owner so that they can use another contractor to complete the work.
Enforcement
If the project owner needs to enforce a payment or performance bond, they will need to review the bond documents and notify the contractor of the enforcement action. Then, they can file a claim with the payment bond company with details about why they are filing the claim, how much they are owed and any other information to support the claim.
Usually, the bond company has a limited time to respond. If they do not pay the claim, it may be necessary to file a lawsuit.
]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479652023-12-05T21:11:06Z2023-11-28T18:54:15Zconstruction industry. In this blog post, we'll explore some of these requirements.
The basics of contracts
A contract is a legally enforceable agreement between two or more parties. Traditionally, the only requirements for most types of contracts are:
Offer
Acceptance
Consideration
The first two are self-explanatory. Consideration is something given in exchange. When you buy a shirt from a retailer, your money is your consideration and the shirt is the retailer's consideration in your sales contract.
If a contract has these three elements, all parties had the capacity to make a contract, and the subject of the contract is legal, then a court will enforce the contract.
When contracts must be in writing
Looking at the above, we can see that not all contracts must necessarily be in writing. In some situations, a proverbial handshake deal can be legally enforceable.
However, under Florida law, certain types of contracts must be in writing. These include:
Contracts involving the sale of real estate
Contracts that will take more than one year to complete
Contracts to pay the debt of another party
Contracts for sales that total $500 or more
As you can imagine, these requirements cover many situations in the construction industry.
Other special concerns for construction
Florida law imposes some other restrictions that are important for the construction industry. These include:
Lien requirements: Generally, Florida courts will not enforce any clause in a contract that attempts to waive a party's rights to place a lien on a property. There may be some possible exceptions involving emergency restoration work. Contracts for home improvement must include notices about mechanics' liens and construction defects.
Contingent payments: Florida courts are very strict when interpreting clauses that make one party's payment contingent on another party's payment. If a court finds such a clause to be unclear, it will interpret it to mean that the parties have a reasonable time in which to make their payments.
These are just some of the areas in which Florida places certain limits on construction contracts. There are also special requirements for public projects and many more situations.
]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479632023-11-29T17:06:32Z2023-11-28T15:22:03Zarbitration and mediation.
Arbitration
In some ways, arbitration is similar to a trial. The process involves the parties presenting arguments before an arbitrator. Like a judge, an arbitrator has the power to decide the case. Unlike a judge, the arbitrator's decision isn't necessarily binding on all the parties. The parties must agree to abide by the terms of the arbitrator's decision.
In some cases, the parties agree in advance to resolve any legal issues through arbitration. In others, they choose arbitration in order to avoid the expense and time commitment of going to trial. In either case, it can be important to choose an arbitrator who understands the construction industry and construction law.
Mediation
Mediation is a form of negotiation that is guided by a neutral third party, who is known as the mediator. Unlike a judge or an arbitrator, a mediator does not have the power to render a decision. Instead, the mediator's job is to facilitate negotiation so that the parties can more easily resolve their differences and come to an agreement. Each side is represented by its own attorneys, and for best results, all should go into the mediation with the goal of reaching agreement.
Because the issues involved in construction disputes can be so complex, it can be important to choose a mediator who is knowledgeable about the industry and construction law.
]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479622023-11-27T06:47:09Z2023-11-13T06:45:45Zwhich can help get you paid.
What is a lien?
A lien is a legal claim that gives you a security interest in the property until you receive payment. It can stop a property sale or refinance until the lien is released, i.e., until you are paid.
Valid contract
The first step to getting a lien here is that you need to have a valid contract with the owner directly or a valid contract with a person or entity that has the authority to bind the owner, like a construction or remodeling contract with the owner. To be clear though, the contract can be in writing or oral, but it must include the full scope of the work and price, including the payment terms.
Notice to the owner
If there was a contract, you fulfilled it, but you were not paid, the next step in the Florida lien process is to provide notice to the property owner and any other party liable for your payment.
Notice informs the liable parties of who you are, the description of the work done or materials provided and the amount due. This notice is due within 45 days of you finishing the work or providing materials for the project, and it can be sent by certified mail, personal delivery or posting at the job site. Keep your proof of service.
Record the claim of lien
You record a claim of lien with the clerk of the circuit court in the county where the property is located. The claim of lien is a legal document that creates the lien.
It includes your name, address, a description of the work you did or materials provided, the amount due, property description, the owner’s information and the date you did the work or supplied the materials.
It must be recorded within 90 days of that date, and a copy of the claim of lien must be sent to the owner within 15 days of the lien recording.
You can enforce your lien. You can also use its existence to force negotiations and get you paid. It is a powerful tool to make sure your contract is fulfilled.
]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479612023-11-09T17:04:31Z2023-10-30T16:02:30Zcontract interference.
Can you defend against allegations of contract interference?
It depends on the circumstances of your case, but there are legal grounds that allow for interference with a contract. One privilege that you have to interfere with a contract is through competition. To succeed in defending yourself on competition grounds, you’ll have to show that:
The matter in question involved competition between you and the other party.
You didn’t utilize any wrongful means to interfere with the contract.
Your actions didn’t illegally restrain trade.
Your goal, at least in part, was to advance your competitive positioning.
You can also defend against allegations of tortious interference by arguing that you interfered only to protect your own financial or contractual interests. Here, though, you also have to show that you didn’t employ any sort of wrongful means, which is sort of a legal term of art.
Know how to navigate your construction law contractual issues
There are a lot of legal nuances involved in these sorts of construction contractual issues. That’s why you shouldn’t move forward with your case without a full understanding of your defense options and how they’ll interact with the facts of your case.
By educating yourself, you’ll be able to make the fully informed decisions that you think will adequately protect your business interests. Hopefully then you can put the matter to rest and get back to focusing on building your business.]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479532023-10-03T15:27:52Z2023-09-29T15:26:27ZMediation is also a better option if you wish to preserve your business relationships.
The mediator’s role
A mediator is a neutral third party who listens to the issues and arguments of both sides, asks questions and offers suggestions for resolution.
A mediator does not take sides and cannot force one side into an agreement. Unlike a judge, a mediator has no power to decide an outcome.
Given the benefits, it is usually in your best interest to try mediation. Part of the mediation preparation process involves choosing a mediator. You should look for a mediator with positive qualities such as fairness, good listening skills and the ability to be impartial.
Additionally, it is important to find a mediator with experience in the construction industry, so they will be familiar with the issues that are in dispute.
Know your issues and goals
Prior to mediation, outline the specific issues and your proposed resolution. It might help to put these into a written list. Write down the strengths and weaknesses of your position and what type of outcome you hope to achieve.
At the mediation, put in a good faith effort to resolve your dispute. Act respectfully toward the other side and the mediator. Be a good listener. Do not make your arguments without being willing to listen to and consider the other side’s arguments, as well.
Be flexible. A solution that is in everyone’s best interest usually involves some compromise. Keeping these tips in mind can increase your chance of success at mediation.]]>On Behalf of Malka & Kravitz, P.A. - Your Construction Law Firmhttps://www.mkpalaw.com/?p=479492023-08-23T17:58:13Z2023-08-31T17:57:08ZCommon coverage
There are several items that construction insurance usually covers. The first provides coverage for damage to the construction site. This could include damage or loss of a building or equipment. It may also cover damage caused by fire and natural disasters, as well as for theft.
It’s common that the policy will also cover injury to third parties or for damage to a third party’s property. Some policies also cover project interruptions, such as when a project is delayed, and it causes lost income or additional expenses for the project.
If the construction project has an environmental impact, the policy may cover claims for environmental damage or pollution. Finally, if tools or equipment are lost or damaged at the construction site, the policy may cover those items also.
Disputes
Builders may encounter disputes with their insurance company over coverage. One of the most frequent disputes arises because the insurance company denies coverage for a claim that is excluded under the policy, or it does not agree with how the damage occurred.
The policyholder and the insurance company may disagree about how much should be paid to a third party, like a neighbor or pedestrian who is injured. Also, if the insurance company believes that the policyholder misrepresented information on the application, that may also lead to a dispute.]]>