Contact
Tritt|Henderson
707 Peninsular Place
Jacksonville, Florida 32204
Phone:
(904) 354-5200
Facsimile:
(904) 354-5256
Website:
|
|
|
|
First off, we want to wish all of you a safe and enjoyable Fourth of July weekend! It is always hard to believe that the year is now halfway over. In this quarter's newsletter, Bryan Rendzio discusses the Cooperation Requirements in your contracts and Christopher Cobb breaks downs the Statute of Limitations in Part I of his 2 part article.
Tritt|Henderson gets a digital facelift! We are pleased to announce our new firm website, www.tritthenderson.com. We hope that the site will offer you a quick reference for links to the Florida statutes on construction law and past editions of our newsletter articles. Please do not hesitate to contact our office if there is an issue or article you would like for us to discuss either in a future newsletter or on the website. |
|
|
Are You Complying with Your Agreement? Know What Cooperation Requirements are in Your Contract, As Well As Those Mandated by Statute
 by: Bryan R. Rendzio
Under the 2007 AIA A201 General Conditions, contractors are provided with an opportunity to correct deficient work. Specifically, section 12.2.2.1 of the A201 sets forth a notice and correction period for any defects found prior to or within one year after the date of substantial completion. Specifically, the section states "[i]n addition to the Contractor's obligations under Section 3.5, if, within one year after the date of Substantial Completion of the Work . . . any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner . . .. The Owner shall give such notice promptly after discovery of the condition. During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Section 2.4 [of AIA A201]."
So what does this mean? Essentially, there are two items to take away from the above. The first is never accept an owner's claim for a defect at face value, instead determine when the defect was first discovered. If the defect falls within the above call-back warranty, the owner is required to provide timely notice (i.e. prompt notice). What constitutes "prompt" notice is not certain. However, one thing is clear. If the owner fails to give notice of a defect that was discovered during the above timeframe, then he/she has likely waived a right to pursue the contractor for a breach of warranty as it relates to that defect. The second pearl of knowledge is to always address any issues that an owner raises during the call-back period. If the contractor does not "promptly" correct the issue, then the owner has the right to correct the defect himself/herself. Do not sit on your rights since an owner's repairs via other contractors may cost you more in the long run as opposed to you correcting the work using your own workforce and supplies.
In today's construction market, it is not uncommon for contracts to require cooperation from both the owner and the construction professional. Thus, it is imperative that you, as the industry professional, understand what you have and have not signed up to provide. This will be a three-part article, that addresses the 2007 AIA "call-back" warranty, the ConsensusDOCS "call-back" warranty, as well as the cooperation requirements of Chapter 558, Florida Statutes (Florida's "Notice and Opportunity to Repair" Statute). The first portion of this article will address the AIA's call-back warranty. |
|
Statute of Limitations v. Statute of Repose - When Does Your Exposure Really End?
We all know and have heard about statutes of limitations. Simply stated, statutes of limitation are deadlines for a party to file a lawsuit. They exist because over time evidence disappears, memories fade and companies dispose of records. Statutes of limitation largely appear in Chapter 95 of the Florida Statutes and you should be aware of them. They can provide a good defense to an untimely lawsuit, but statutes of limitation can also be avoided by a number of differing factors. One example is when a Construction Defect Notice under Chapter 558 is served the statute of limitations is temporarily stopped or tolled so the parties can engage in the notice and inspection procedures found in Chapter 558.
There are many different types of statutes of limitation in Florida. For example, if you default on your mortgage, your lender has 5 years to sue (or foreclose) on the mortgage. If you are in an automobile accident, you have 4 years to sue for the personal injury. If you verbally agree to provide materials to a job you have 4 years to sue on that verbal agreement if you are not paid. However, if your same agreement to provide materials is in writing then you have 5 years to sue under that written agreement. If you have attended our Construction Lien seminars you will also recall you only have one year to sue on a recordedconstruction lien. These are all examples of statutes of limitation. Note that many of the deadlines commence with a breach or when the injury occurs.
Of particular importance to the construction industry is the limitation found in 95.11(c), Florida Statutes, which requires a lawsuitinvolving the design, planning or construction of improvements to real property be brought within 4 years from the last to occur of the following events:
- Actual possession by the owner
- The date of issuance of the Certificate of Occupancy
- The date of abandonment of construction
- The date of termination or completion of the construction contract
Therefore, if your construction project experiences a leaking roof and the owner does not file his lawsuit with 4 years, you would have a very good statute of limitations defense. But what happens when a project is accepted by the owner and the damage is covered up behind a wall? This is called a latent defect. If the owner does not know about or does not uncover the damage behind the wall until 8 years after he accepted the project, do you have a good statute of limitations defense? See my article next quarter which will discuss this situation and what is known as the statute of repose. |
|
Tritt|Henderson's Digital Facelift
We are pleased to announce the new Tritt|Henderson website - www.tritthenderson.com. Feel free to click the image of our homepage below to begin exploring our new site:
|
|
2011 Florida Super Lawyers®
Florida Super Lawyers Magazine has recognized all 4 shareholders in it's 2011 edition. Both Arnold D. Tritt, Jr. and Reese J. Henderson, Jr. were noted among the top construction lawyers in Florida. Christopher Cobb and Bryan Rendzio were both also recognized as 2011 "Rising Stars" in Construction Law. Only five percent of attorneys in the state are named by the publication. Super Lawyers selects attorneys using a rigorous, multi-phase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. Super Lawyers can be found online at www.superlawyers.com, where lawyers can be searched by practice area and location. |
|
Tritt|Henderson Proudly Supports the ACE Mentoring Program
 This May, the ACE Mentor Program of Northeast Florida held its Annual Year End Event. At the event, high school students from A. Philip Randolph, Academies of Technology, Orange Park High School and Englewood High School, who participated in the mentoring program for 2010 - 2011 school year, presented their final projects and scholarships were awarded to participating seniors during the luncheon portion of the event. Reese Henderson, who serves on the Board of the ACE Mentoring Program, presented a scholarship on behalf of Tritt|Henderson to to Charmaine Ervin. At this year's program, over $17,000 in scholarships were awarded. ACE was founded in 1995 and is a not-for-profit national organization whose mission is to enlighten and increase the awareness of high school students to career opportunities in architecture, construction and engineering and related areas of the design and construction industries through mentoring; and to provide scholarship opportunities for students in an inclusive manner reflective of the diverse school population. For more information about ACE and how to get involved, visit http://www.acementor.org. |
|
|
Thank you for choosing Tritt|Henderson as your construction attorneys. Please never hesitate to let us know how we can help your business achieve its goals!
- The Entire Team at Tritt|Henderson |
|
|
