Construction Law

Construction Law

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Historic preservation laws in many cities and states limit the right of a building owner to make changes to a building that would affect its historic character. Some restrictions may apply to just one building, while others may apply to whole neighborhoods. Historic preservation laws are not limited to old, elaborate, or famous buildings. Preservation laws have been extended to ordinary homes, in ordinary middle-class neighborhoods that are considered to have some historic or architectural significance. If you are located in a historic preservation district, you may need legal advice as to what you can or can’t do on your property.

For more than 30 years, the lawyers of Sanders & Parks have handled a wide range of construction dispute and construction law matters. Our attorneys are available to serve any engineering, architectural, or other construction professional in Phoenix, Arizona, or throughout the United States. Let our experience work for you.

Overview


Construction of both residential and commercial buildings can involve numerous legal issues, including construction-related disputes. When you are faced with construction related legal issues, you need the assistance of the experienced attorneys at Sanders & Parks in Phoenix, AZ.

The construction contract is the essential document that sets out the rights and responsibilities of each party to the agreement. It is important that you read this document carefully, and that you understand it fully. The legal consequences may not be obvious, so it’s important to have a lawyer review it with you. While some compromise may be necessary, you need to be certain that this truly is the agreement you want to make. If it is not, you should not sign the agreement unless the changes you want are made. You will be legally bound by this contract, and it is no defense to say that you didn’t read it all the way through.


Construction contracts

The construction contract is the essential document that sets out the rights and responsibilities of each party to the agreement. It is important that you read this document carefully, and that you understand it fully. The legal consequences may not be obvious, so it’s important to have a lawyer review it with you. While some compromise may be necessary, you need to be certain that this truly is the agreement you want to make. If it is not, you should not sign the agreement unless the changes you want are made. You will be legally bound by this contract, and it is no defense to say that you didn’t read it all the way through.

The contract should tell you exactly what the contractor is going to do, and it should also tell you how much the property owner will be expected to pay for what the contractor does. Most construction contracts are standardized forms, sometimes supplied by a trade association. A typical construction contract will set out the timeline for the completion of the project, the schedule of payments, any penalties for late performance and the method to be used to resolve disputes. When reviewing the contract, you should keep in mind what is reasonable to expect from each party, including yourself. Are the time limits set out realistic or are they just setting the contractor up for failure? Are the fees and expenses charged within the financial capabilities of the property owner or is the owner agreeing to something that cannot be delivered? You are the best judge of what seems reasonable, and you should keep that consideration in mind as you consider signing the contract.

Construction disputes

Despite everyone’s best efforts to make everything work well, disputes may arise during any construction project. Disputes that arise during a construction project can cause delays that add to the expense of the project. Disputes that arise at any time are costly and consume a great deal of everyone’s time and energy.

Most construction contracts will tell you how disputes are to be resolved. Many contracts will require the parties to use alternative dispute resolution (ADR) mechanisms, such as arbitration or mediation, rather than litigation to resolve disputes. If the contract requires alternative dispute resolution, that is how disputes will be heard: if it’s specified in the contract, it is not optional. On the other hand, alternative dispute resolution methods are generally faster and less expensive than traditional litigation, which works to the advantage of both parties.

Speak to a construction law attorney

Construction projects can give rise to numerous legal issues and problems. In many cases, anticipating potential issues when drafting the construction contract can prevent problems from getting out of hand and causing undue trouble or expense for everyone involved. Everyone involved in a construction project should have legal counsel to help protect him or her from what may arise. An experienced construction law attorney at Sanders & Parks in Phoenix, AZ, can provide you the counsel you need to protect your interests.

Zoning and Land Use


Property owners are not entirely free to do whatever they want with their property. Most property is subject to governmental oversight on the uses to which the property may be put. It is important that property owners are familiar with these zoning and land use restrictions before they attempt any major work on their property.


Zoning laws and regulations

Zoning laws or ordinances restrict the types of uses to which a particular piece of property may be put. While the nature of zoning restrictions vary by city, the most common type of zoning law designates property as business, residential or a combination thereof. Some cities have very strict, wide-ranging zoning laws; for example, zoning laws may also regulate fence height, prevent homeowners from keeping certain pets or parking certain types of vehicles on the street.

A property owner who wishes to use his or her property in a manner inconsistent with the zoning laws may be able to obtain a “variance.” The decision as to whether to grant a variance is typically left to the sole discretion of the local zoning authority — some of which may grant such variances liberally, while others are more restrictive. A variance that does not change the essential character of an area will typically be granted. For example, if a variance to allow a small retail store to operate in an area zoned for residential use is requested, the zoning authority will likely approve the variance if a parcel on the same street is already being used for commercial purposes, any impact on traffic flow in the neighborhood would be minimal and nearby property owners do not object to the variance request.

In some extreme cases, the courts have held that zoning laws are so restrictive as to amount to a “taking” of the owner’s property, allowing the owner to make a claim for compensation form the governmental authority that made the zoning law.

Zoning is a complicated area of the law, subject to numerous technical rules and special practices. Non-compliance with these rules may result in delay, or even the dismissal, of a variance application, often at a substantial loss of time and money. Before you apply for a variance, contact Sanders & Parks in Phoenix, AZ, to schedule a consultation with an attorney who is experienced in zoning and land use matters.

Land use law and regulation

Many property owners are under the mistaken belief that once they receive a favorable zoning decision, they can do as they please. Zoning is only one part of a very complex picture. Many communities have comprehensive plans that limit the way land may be used in the community. These plans will often restrict the type and size of buildings that may be built in certain areas. The plan may also regulate the placement of a building on a lot, and may even require prior approval of a building’s appearance or design to ensure its conformity with other buildings in an area.

These special requirements are in addition to the normal zoning laws. A parcel of land may be zoned for residential uses only, but that does not mean that any type of home may be built there. The community may have imposed further requirements for square footage, lot size and design.

Property owners should also be aware of any environmental restrictions. In many areas, a property owner will not be allowed to damage or destroy a wetland or other protected area that may be on or adjacent to the property. A property owner may also be required to clean up hazardous materials and/or contaminated soil left by a previous owner of the property.

It is important to know, in advance, what restrictions may limit the use of your land. Ignoring a restriction can subject you to legal penalties and new legal hurdles. It is best to know what you may or may not do, before you start a project.

Contact a zoning and land use lawyer

Zoning laws and land use restrictions can be a source of great frustration and expense for a property owner. Knowing the restrictions in advance, and being prepared to deal with those restrictions, can minimize the frustration. Before you embark on a construction project, contact Sanders & Parks in Phoenix, AZ, to schedule a consultation with an experienced land use and zoning law attorney.

Construction Disputes


Disputes between a contractor or a construction company and a customer are all too common. Disputes often arise out of delays in getting the work done, unsatisfactory work, or a customer’s failure to make payments. Construction-related disputes can consume a lot of time and money on the part of everyone involved. In many cases, the expense involved in pursuing a dispute is far out of proportion to the money actually at stake.


Resolving construction disputes

Most construction contracts set out the manner in which disputes are to be resolved. The typical construction contract calls for the use of a means other than litigation, such as arbitration or mediation, to resolve disputes arising under the contract.

There are some construction-related disputes that will only be resolved through litigation. A claim under a mechanic’s lien requires court action for enforcement. A mechanic’s lien is a method used by contractors or others involved in improving real property to ensure that they are paid for services performed and materials supplied. The lien attaches to the property when the work is performed or goods are delivered. It remains attached to the property until payment for the work or goods is made. If the property owner does not pay for the services or materials, then the person who performed the work or sold the materials may initiate a court proceeding to enforce the lien. A mechanic’s lien proceeding, if not settled or resolved before final judgment, may require a sale of the property to pay for the services and materials.

Arbitration

Many construction contracts require that disputes arising under the contract be resolved by arbitration. In addition, many courts will order that a case be submitted to arbitration before allowing it to come to trial. Arbitration is like a trial, except that it is usually much less formal. The dispute is heard by one or more arbitrators, who are selected from a panel of neutral arbitrators. Depending on the local practices and rules, the arbitrators may be attorneys or people with expertise in the construction industry. The arbitrators act like a judge, in that they hear the case and make a final decision based on the evidence presented.

Arbitration may be made binding on the parties, if they so agree. Many construction contracts do require binding arbitration, and if you sign such a contract without removing that provision, you will be deemed to have agreed to binding arbitration. The courts will not overturn the order of an arbitrator in binding arbitration unless the arbitrator made a decision that completely lacked any legal foundation.

Although arbitration is less formal and complex than a regular trial, it still is important that you have legal counsel you can rely on to make your case. An experienced construction law attorney will work hard to present your case in the best manner possible.

Mediation

Mediation is another method of dispute resolution that is often ordered by courts before a case may be brought to trial. Mediation is seldom required by a contract, and it also differs from arbitration in that it is not like a trial. Mediation is an effort to get the parties to reach a mutually agreeable settlement. A mediator, like an arbitrator, is a neutral party, but unlike an arbitrator, a mediator does not make a decision as to who is right or who is wrong. Rather, the mediator does what he or she can to get the parties to some common ground for an agreement.

The mediator’s role is limited to listening to each party and presenting settlement options and proposals to the parties. Most mediators are selected for their knowledge of a particular area of the law. This lets them advise a party as to whether a particular claim may or may not be successful in court, and whether a party might be best advised to accept a settlement offer. No one forces the parties to come to an agreement, and ordinarily a party who refuses to compromise or settle a claim is not penalized.

Speak to a construction law attorney

Construction disputes can be complex, expensive affairs. No matter the method used to resolve your dispute, you should be represented by an attorney who can help you explore your options, and pursue your claim in a way that meets your needs and that is in your best interests. An experienced construction law attorney at Sanders & Parks in Phoenix, AZ, can provide you with the representation that you need.

Hiring a Contractor


The relationship between a property owner and a contractor can work smoothly if both parties are willing to take the steps needed to do so. It can also be a contentious one. It can also work smoothly, if both parties are willing to take the steps needed to do so. An attorney with experience in construction law will help you do what is necessary to make sure things go according to plan.

Hiring a contractor is something many, if not most, property or building owners will be faced with at some point. While some owners may want to do construction work themselves, for many, do-it-yourself is not a realistic option. Laws in many communities state that a licensed professional must do certain types of work, such as electrical installation. Most property owners will also conclude that they will, in the long run, save time and money by hiring a professional to do the work.


What does a contractor do?

A contractor may be compared to the producer of a movie. It is the contractor’s job to make sure everyone else does his or her job and to see that the whole project comes together as a whole. The contractor is responsible for taking the idea of what the property owner wants and turning it into reality.

Your dealings will probably be with a general contractor. The general contractor is the one responsible for the overall completion of the project. Some contractors are able to do all of the work necessary to complete a project. Most projects, however, require workers in several different fields. Constructing a small building, for example, may require carpenters, electricians, plumbers, masons and painters. Most contractors are not able to handle this work themselves and will hire subcontractors. Subcontractors typically interact with the general contractor and not the property owner. It is the general contractor’s responsibility to make sure that subcontractors do their jobs and that the work they do meets the required specifications.

How do I hire a contractor?

A contractor is a professional and, just as you would with any other professional you hire, you should proceed carefully before you hire one. Do not hesitate to talk to several different contractors before hiring any one of them. It is important that you be satisfied with the contractor and confident that he or she will do the work to your satisfaction. Ask for references — most contractors are more than happy to provide you with the names of prior customers who are happy with the work done for them.

As you interview prospective contractors, be wary of the “scam artist.” While the vast majority of contractors are honest, there are a number of dishonest operators who should be avoided. You should be able to check with your city or state licensing board to learn if a contractor is licensed. While licensing itself is no guarantee of honesty, the fact that a contractor is operating without a license, probably in violation of the law, should be a cause for alarm. A contractor who is willing to cut corners with legal requirements may also be willing to cut corners on the work he or she does. In addition, you should be able to review the record of complaints filed against a contractor. You should also check the records of lawsuits that may have been filed against the contractor. Lawsuits and complaints are not always an indication that anything is wrong, but a consistent pattern is a warning to dig deeper.

You should also review the bid carefully. Many home improvement disputes come about because the contractor promised more than he or she could deliver. For example, many standard home improvement contracts promise that a job will be completed in ninety days. Those contracts often fail to consider delays caused by the weather, suppliers or subcontractors. Be sure you understand what the contractor agrees to do, and decide for yourself if the promises are reasonable.

Contact a construction law attorney

The relationship you have with a contractor is an important one. It is also a relationship that has the potential to create serious legal problems. Contact Sanders & Parks in Phoenix, AZ, today to schedule a consultation with an attorney who can help you avoid construction problems and resolve any issues quickly and effectively.

Construction Defects


Very few buildings are completed to absolute perfection, but not every variance in quality will be considered a defect by a court. The defects that are most often pursued are those that reduce the value of a building or that interfere with its use.


Construction defects

Some common examples of construction defects include:

  • Dry rot
  • Water seepage/mold
  • Faulty drainage
  • Insect infestation
  • Improper materials
  • Settlement or movement
  • Structural failure
  • Defective plumbing
  • Faulty wiring

Defective construction can result in a serious loss to the home or building owner. An experienced construction law attorney from Sanders & Parks can pursue your claim and help recoup the losses caused by defective construction.

Environmental hazards

Some construction defects do more than affect the value of a building. Some defects can cause serious health problems for people who use or live in a building. Environmental hazards can be caused by either faulty materials or negligent construction. Faulty materials, especially those not intended for use in residential construction, may emit hazardous substances.

Faulty construction, usually in the form of improper ventilation or water seepage, can also cause environmental hazards. A common type of environmental hazard is toxic mold. Hazardous species and concentrations of mold can grow in areas that are not properly ventilated and that are exposed to moisture, either through seepage or leakage. The mold will discolor and damage porous surfaces. More importantly, mold is also a potent allergen, causing allergic reactions and health problems in many people. Young children are especially vulnerable to health problems caused by mold spores, including asthma, which has been linked to mold proliferation.

Contact a construction law attorney

Construction defects deprive property owners of the full use of their property. Defective construction is also unfair to the customer who paid for quality construction that was not received. If you believe you have a construction defect claim, contact Sanders & Parks in Phoenix, AZ, to schedule a consultation with an experienced construction law attorney.

Resource Links

American Arbitration Association
Resources on alternate dispute resolution, including construction-industry specific arbitration.

Associated Builders and Contractors
Resources for builders, contractors and others in the construction industry, brought to you by the Associated Builders and Contractors, Inc., a national construction trade association.

HUDCLIPS
HUD’s Client Information and Policy System (HUDCLIPS) provides access to HUD’s official repository of policies, procedures, announcements and other materials.

International Code Council
Model building codes and construction standards.

National Association of Home Builders
Trade association for residential building and remodeling contractors.

ABA Forum on the Construction Industry
Information and publications on construction law sponsored by the American Bar Association’s Forum on Construction Law.

The Access Board
Governmental agency that oversees building standards to comply with the Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA).

Introduction to Building Codes
General information on interpreting and understanding building codes, brought to you by the International Code Council.

Associated General Contractors of America
Resources, information, newsletters and meetings of the Associated General Contractors of America, the construction industry’s largest member association.