Thanks for the Super Lawyers Nod for 2019!

2019 Virginia Super Lawyers Construction LitigationIt is with humility and a sense of accomplishment that I announce that I have been selected for the third straight year to the Virginia Super Lawyers in the Construction Litigation category for 2019.  Add this to my recent election to the Virginia Legal Elite in Construction and I’ve had a pretty good year.  As always, I am thrilled to be included on these peer elected lists.

So without further ado, thank you to my peers and those on the panel at Virginia Super Lawyers for the great honor. I feel quite proud to be part of the 5% of Virginia attorneys that made this list for 2019.

The full lists of Virginia Super Lawyers will appear in the May edition of Richmond Magazine. Please check it out.

If you want to see the lists before then, a digital version of the Virginia Super Lawyers Magazine is available here.

Thanks again to all of you who participated in my nomination and election.

As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.

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Thanks for the Super Lawyers Nod for 2019!

An Interesting Look at Mechanic’s Lien Priority and Necessary Parties

home photoAs regular readers of Construction Law Musings are well aware, I like to discuss mechanic’s liens.  Whether it is their picky nature, the way court’s treat them or the soon to take effect changes in the form, mechanic’s liens are a topic near and dear to my heart as a construction attorney.

This past month the Fairfax Circuit Court took on the intersection of mechanic’s lien priority under Virginia Code section 43-21 (the lien priority statute) and what constitute necessary parties that must be named in any enforcement suit.  In Marines Plumbing, LLC v. Durbin, et al., the Court discussed an all too typical scenario.  Marines Plumbing performed repair work on the defendants’ property and the defendants did not pay for the work.  Marines Plumbing recorded a memorandum of lien and subsequently sued to enforce that lien.  In filing its suit, Marines Plumbing failed to name the trustees and lender on a deed of trust securing the loan on the property.  Needless to say, the Defendants moved to dismiss the action for failure to name necessary parties (lender and trustees).

Marines Plumbing argued against the motion to dismiss on two grounds, the first (and unsuccessful) ground was that Marines Plumbing was not seeking sale of the land and therefore the trustees and lender were not necessary parties.  The second and more interesting ground was that because the mechanic’s lien is inferior to that of the trustees and lender it therefore does not threaten these parties’ property interest rendering these parties unnecessary.

The Court initially denied the motion to dismiss and then a subsequent motion to reconsider.  The Court agreed with Marine Plumbing that its lien, one for repairs, was not a superior lien on the improvements and therefore the trustees and lender on the antecedent deed of trust were not necessary.  The Court first held that under the priority statute (43-21):

As a matter of law, therefore, [Marines Plumbing’s] lien is ‘subject to’ the lien of the two trustees and the lender. The result is that, as a matter of law, the interest of the two trustees and the lender is not ‘likely either to be defeated or diminished’ [Marines Plumbing’s] lien. Thus, the two trustees and the lender are not necessary parties.

The Court further discussed the statute set out and linked above along with several cases cited by the defendants that discussed priorty and necessary parties and distinguished them from the case before it.  I recommend this discussion for your reading as I won’t lay it out here.  After distinguishing the cases cited by the defendants, the Court determined that based upon the “nature of the particular interest involved” and the statutory authority found in Va. Code 43-21 making Marine Plumbing’s lien “subject to” the lien of the deed of trust, the defendants motions to dismiss and to reconsider must be denied.  In short, the Court did not simply rest on the timing of the various liens, but upon statutory authority to make its holding.

My takeaway?  The facts are key when discussing a mechanic’s lien and its enforcement.  Further, Courts will be willing to dive into the weeds to make fine tuned determinations on priorty for the particular construction involved. As always, I recommend that you read the opinion yourself and that you let me know your thoughts.

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An Interesting Look at Mechanic’s Lien Priority and Necessary Parties

Time for Some Fishing and Fun!

fishing photoIt’s finallly Spring and that means time with the family on my daughter’s Spring Break this week.  While I won’t be fishing with clients, I’ll be spending some time fishing from shore, fishing from a boat on Pine Island Sound and generally relaxing.  I hope that you all are enjoying what I hope is nicer and warmer weather and if you need the help of an experienced construction attorney, I’ll be back next week refreshed and ready to go.

Please join the conversation with a comment below.  Also, I encourage you to subscribe to keep up with the latest Construction Law Musings.

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Time for Some Fishing and Fun!

Time to Update Your Virginia Mechanic’s Lien Forms (July 1, 2019)

construction photoIn a few of my recent posts here at Construction Law Musings, I’ve discussed a few bills that were considered and/or passed in the General Assembly this year.  One of the bills is one close to my heart and a subject much discussed here, namely mechanic’s liens.

HB2409 passed both houses of the General Assembly and has been signed by the Governor.  This bill reconciled the language found in Virginia Code Sec. 43-4 with the various forms for general contractor, subcontractor and sub-subcontractor/supplier forms found in later sections of the code.  As you will see if you download the .pdf of the bill as signed, this involved some tweaks to 43-4 and some updates to the mechanic’s lien forms that are in the code.  The recent Desai case from the Virginia Supreme Court made it clear that such action was necessary.

Of particular note is an addition of a specific section of the form spelling out which portion if any are claimed but not due (for instance retention or money subject to pay if paid clauses) as of the date of the recording of the memorandum of lien.  Failing to spell this out on your memorandum of lien could potentially cost you a valid lien given the picky nature of these powerful but finicky beasts.  Another minor change was an amendment to 43-4 to require a statement of a date from which interest was claimed.  This last was part of the form to begin with so this won’t affect your form.

As always, be sure to consult an experienced Virginia construction attorney when looking into the recording of a mechanic’s lien.

 

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Time to Update Your Virginia Mechanic’s Lien Forms (July 1, 2019)

You’re Only as Good as Those with Whom You Contract

construction photoI have been beating the drum of the need to have a solid construction contract as the basis for your construction project and contractor/subcontractor/supplier relationships. I have also emphasized that communication early and often is one of the best ways to assure a smooth project.  However, the sad truth is that even with the best contract drafted with the assistance of an experienced construction attorney, if the other party to the contract simply decides not to perform, whether that is through unjustified non-payment or simple refusal to complete a scope of work without reason, it will be an expensive proposition to force compliance or be compensated for the monetary damage caused by such actions.

It is this often unmentioned truth relating to any contract, including those that construction professionals in Virginia deal with on a daily basis, that makes having a good knowledge of those with whom you plan to contract is key to a successful (read profitable) construction project.  Of course be sure that any contractor or subcontractor you contract with has the basics of propoer insurance, the right experience and of course a contractor’s license with the proper specialty or specialties.  These basics will get you most of the way to assuring that those that contract with you at least are responsible in business.  Another key component, if you can find this information out, is the financial wherwithall of the other party.  For a General Contractor, this means both sides of the equation: Owner and Subcontractors.  For a Subcontractor, the key is the Contractor, but any other information you can get on the Owner is helpful (though this can be difficult) particularly in the face of a “pay if paid” clause.

While the items above are the “objective” measures and may seem obvious, sometimes the less obvious and more instinctual measures can and should be considered at least as carefully.  If you’re reading this blog, I hope that you’ve had some experience in construction.  Use this experience by looking the project manager for the General Contractor, or the owner of the electrical subcontractor, in the eye and decide if you think that person will be a good partner for you moving forward.  The hair on the back of your neck or that feeling in your gut (not to mention word on the street) can and should inform your contracting decisions.

If you take the time to do the above, you can at least go into a job with your eyes open.  Can you contract with a company that you get “that feeling” about?  Sure, but you need to be even more of a stickler with the terms of the contract and with assuring that you follow them to the letter and hopefully have enough padding built into your price to allow for a hiccup or two.  Of course you should have this with the best jobs but you may want more for a job that projects as difficult.

To wrap up, a good construction attorney can get you set up from a document and advising standpoint with the baseline contracts and interpretations of those documents, but use of your instincts and some basic investigation along with this advice will be key to a successful construction project.

As always, I welcome your comments.  Also, please subscribe to keep up with this and other Construction Law Musings.

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You’re Only as Good as Those with Whom You Contract

Legislative Update on Bills of Note

In two prior posts, one specifically relating to a bill that was introduced to apply a statute of limitatons on state agencies for construction projects and one more general, I discussed some of the legislation pending in the Virginia General Assembly that could be of interest to construction professionals.

This post will update the status of these bills and add one that I neglected to highlight in the prior posts.  I’ll begin with the oversight.

HB 2218 Makes the unlawful and unlicensed practice of contracting, real estate brokering, or real estate sales, in connection with a consumer transaction, unlawful under the Virginia Consumer Protection Act. In short, it makes explicit what was implicit, namely that contractors that perform work without a license are in violation of the VCPA.  This bill has passed the house by unanimous vote and is in committee at the Senate.

The Statute of Limitations House introduced bill (HB 1667) bill has been left in the Appropriations committee of the House with a request for further study.  The analagous Senate (SB1369) bill has passed the Senate. My “sources” (read those at the AGC-VA) tell me that the bill is being pushed hard in the House.

HB2409 which reconciles the statutes and forms for mechanic’s liens has passed the House and awaits passage in the Senate.  I don’t sense much if any opposition to this bill.

Finally, HB1668 relating to high risk contracting has passed the House and is in committee in the Senate.

I’ll update this further as the results come in.  If you want to get a good idea of the bills that affect construction in Virginia, the list of bills being followed by the AGC ov Virginia is a great place to start (not to mention a membership in the AGC of Virginia gives you a voice in this stuff!)

Of course, the impact of these bills is yet to be seen and the advice of an experienced Virginia construction attorney can help you adjust what needs be adjusted if an when they pass.

As always, I welcome your comments.  Also, please subscribe to keep up with this and other Construction Law Musings.

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Legislative Update on Bills of Note

AGCVA Annual Convention 2019 Was a Blast!

My name tag and firm sponsored key cardThis year marks the Centennial of the Associated General Contractors of America and the AGC of Virginia.  This year’s conference (held January 24-27, 2019) at a new venue , the Greenbrier in White Sulfer Springs, VA, celebrated that milestone.

I have been to many of these over the years and discussed the great marketing and educational opportunities that arise from attendance. This year was no different.  The attendees were able to take advantage of a beautiful sporting clays course, good food, a casino and various other activities from a Friday night dance party with a “Decades” theme to “Black Jack 101.”  The contractors even woke up early Saturday morning to listen to me as part of a panel of Virginia construction attorneys give a legal update.  Thanks to all that attended, I hope you got some good information. And, yes, that is a Greenbrier key card with my firm logo (thanks to the planning committee for the opportunity to be a key card sponsor this year).

With all of that said, I still maintain that the most important part of the weekend (for both contractors and the construction attorneys that serve them) was the networking.  Not only did I get to visit with and cement friendships and business relationships with those I know, I meet someone new each and every time I hit the road from Richmond and head to the appalacian mountains.  I have always found that, even in today’s social media saturated world (of which I am an enthusiastic part), the opportunity to chat, shake hands, and even laugh with friends, clients and potential business sources is an invaluable way to keep a business going.

While having a social media and internet presence is almost a necessity, I find that in person contact creates a trust level and connection that will create a more solid relationship with a general contractor (if you’re a sub) or any other construction company (for those who seek them as clients).  At least in Virginia (and I’d be surprised if it is any other way in other states) a level of knowledge about who you are dealing with is key to both obtaining and getting paid for work.  Participation in an organization like the AGC of Virginia is a great way to meet and start building new relationships and to cement already existing ones.  If you aren’t a member, I hope you’ll consider joining.  If you’re already a member, I hope to see you at the 2020 convention.

In sum, this past weekend was great.  Thanks to all that I met and chatted with.  If I didn’t say “hi” and you’re a friend, I apologize and will catch up next time.

As always, I welcome your comments.  Also, please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

AGCVA Annual Convention 2019 Was a Blast!