Construction Law: An Overview for Homeowners; Part 2 of 4 – During Construction

This is a continuing article series regarding Construction Law: An Overview for Homeowners. These include four different topics, Pre-Construction (Part 1), During Construction (Part 2), Post-Construction (Part 3) and Construction Conclusion (Part 4). Each series of topics discuss informative summaries of what happens within each construction phase.

During Construction 

The importance of contract negotiation cannot be emphasized enough, but the assistance of an attorney is equally essential ring the construction phase of a project. This is the point where the quality of service on a contract will be tested, and in the event that the homeowner has concerns, it is important to have a strong advocate to interpret and enforce the homeowner’s contract rights.

Monitoring Contractor Performance

The contractor’s work must be monitored throughout the construction process and help to compliance with the project plans and specifications, municipal codes, and the terms of the construction contract. Several concerns may arise during construction which must be addressed, including:

  • Abandonment of work. This is a breach of the construction contract;
  • Working without a building permit. This is also a breach of the construction contract;
  • Wrongful work stoppages and payment demands. This is also a breach of the construction contract;
  • Dangerous conditions being permitted on the project site. This concern is especially pressing due to potential owner liability for worker injuries under the Scaffold Law;
  • Defective and nonconforming work. In addition to breaching the contract, this may also inflict property damages or rise the possibility of personal injury.

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Termination / Replacement of Faulty Contractors

When concerns continue arising with a contractor’s work, it may be necessary to terminate and replace the contractor. When a construction concern breaches its contract, the homeowner has the right to terminate the contract and seek damages. Nevertheless, this must be done in accordance with the terms of the contract or may not constitute a valid termination, so consultation with an attorney is essential. A replacement contractor must also be properly vetted so as to prevent the homeowner from repeating the hassles of the terminated contractor.

Lien Filings

People and businesses that provide services related to the improvement of real estate are entitled to mechanic’s liens that attach to the property. It is not unheard of for contractors to file mechanics’ liens to exert pressure on homeowners to meet payment demands, so best practice is to obtain lien waivers over the course of the project. Once a stage of the project has been completed, the contractor (and, where applicable, subcontractor) should be required to provide a waiver of mechanics lien in the amount of all payments to date.

John Caravella, Esq

John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608-1346.

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i Education Law §§ 730 I (defining practice of architecture to include ”design and construction of buildings”)       and 7302 (only licensed architect tq practice architecture).

ii General Business Law§ 770.

iii General Business Law § 771.

iv See. City of Elmira v. Larry Walter, Inc.. 76 N.Y.2d 912,564 N.E.2d 655 (1990).

v Barrett v. Jo hnson, 150 N.Y.S.2d 853 (App. Term 2d Dep’t 1956).

vi Remodeling Const. Servs. v. Minter, 78 A.D.3d 1677, 913 N.Y.S.2d 446 (4th Dep ‘ t 2010).

vii See, e.g., Labor Law § 240.

viii See, e.g., Ma rkham Gardens L.P. v. 511 9th LLC, 38 Misc . 3d 325, 331, 954 N.Y.S.2d 8 I l, 815 (Sup. Ct. Nassau Cty. 2012).

ix Lien Law§ 3.

x See, e.g.. B & F Bldg. Corp. v. Lieb!g. 76 N.Y.2d 689 (1990).

,; CPLR R. 5224.

xii  CPLR  § 5222.

,iii CPLR § 5231.

xiv CPLR § 5230.