construction defect

Hidden Defects in Buildings


            Shelter
is a fundamental human need. 
Construction defects can render a shelter unsafe or outright collapse
it, displacing families and bankrupting businesses.  Some defects are obvious: you wouldn’t buy a
house with a collapsed roof.  But
others, like wooden supports inside a wall, are invisible when purchasing or
renting a building.  These latent
(hidden) defects typically provide a stronger and longer basis for the
purchaser to claim damages from the construction company.





            Florida law sets limits on how long purchasers
have to file lawsuits regarding construction defects.  For most cases, purchasers have four years
after occupying the building to take legal action.  This time limit is known as the statute of
limitations.  But for latent defects,
the four-year statute of limitations doesn’t start ticking until the time you
discover, or could have reasonably discovered, the defect.  However, a ten-year statute of repose,
starting from the time of occupancy, applies to all construction defects —
even latent ones.  That means a family
discovering a roof leak in their seven-year-old house only has three years to
file against the construction company. 
Since there is a grey area regarding what’s a discoverable defect and
what’s a latent defect, it is best to contact an experienced construction law
firm, like The Boutty Law Firm, as soon as the defect is discovered.





            When
a construction company builds a building, it usually has prospective tenants
or owners sign a contract to buy the building on completion.  This contract often contains clauses that
specify how responsible the construction contractor is for defects.  The Levitz Furniture Company signed such a
contract with Continental Equities, a construction company.  A year after Levitz moved into the new
warehouse, the roof and a supporting wall collapsed, costing Levitz well over
a million dollars in damages considering repair contact costs plus profits
lost while waiting for repairs.





            Understandably, Levitz was ticked
off when Continental tried to charge it $1.2 million for rent during the
period of repair.  Levitz sued
Continental for the damages and to get rid of the rent charge.  The case hinged over the contract Levitz
signed, which said “Tenant, by taking
possession thereof, will be deemed to have acknowledged that the demised
premises, with all appurtenances, were in good order and condition when
received by Tenant, latent defects
excepted
.
[emphasis supplied]” 
Since Levitz could not have reasonably discovered the hidden
construction errors that led to the building’s eventual collapse, Florida’s
Third District Court of Appeal ruled in Levitz’s favor.  In some cases, the contract will contradict
Florida law, requiring an experienced construction law attorney to convince
the court as to which should take precedence.





Purchasers
of poorly constructed buildings require well-constructed legal arguments to
recover thousands or millions of dollars in damages from repair costs,
displacement costs, property loss, and resulting injuries.  For more information, contact The Boutty Law
Firm at (407) 537-0543.


Construction

5 Facts About Construction Liens in Florida (Part 2)


This blog is part 2 of our two-part series: 5 Facts About Construction Liens in Florida. Continue reading to understand what is needed to comply with construction lien laws in the state of Florida. Click here to read part 1:





4) Falsifying a Florida Lien Claim Could Cost You Jail Time





When filing a construction lien in Florida, it is important that all information associated with the lien is filed accurately and honestly. Exaggerating the claim on a construction lien is a 3rd degree felony in the state of Florida. Felonies are serious charges which can result in a prison sentence in some cases. Even without conviction, you may still face fines, legal fees, and other consequences if you don’t file your construction lien claim accurately.





Florida law does not permit construction liens to include charges that are not approved. Examples of unapproved charges include unauthorized work orders, unperformed work, or similar claims for damages. Taking care to avoid mistakes is essential when filing claims as it may be difficult to differentiate between accidental mistakes and willful exaggeration or fraud. Lien claimants in the state of Florida should not add costs, lien-related fees, interest, or attorney fees to construction liens.  Florida construction lien laws only permit claimants to include the actual permanently improved value of the property.





5) Construction Liens in Florida Have Deadlines





Florida construction liens are only valid for a specific period of time. Filing liens accurately and in a timely manner is critical to securing their value. Generally, a Florida construction lien foreclosure is due within one year from the date the lien is recorded. After this period, the lien expires, unless a lawsuit has been filed to foreclose the property and the lien. Under certain exceptions, the one year timeframe for the lien may be shortened by the property owner to 60 or 20 days from the date of recording. These exceptions include:





  • When a property owner gives a notice of contest of lien, the foreclosure period may be reduced to 60 days.
  • If the owner or party of interest files a lawsuit or complaint, the county clerk may issue a summons which can reduce the foreclosure period to 20 days.




Other Helpful Information to Know About Florida Construction Liens:





  • Florida law requires all construction liens to be notarized in order to be valid.
  • Florida construction liens do not require a legal property description, but they should include a basic description of the property for identification purposes.
  • In the event of payment, a construction lien may be cancelled by the lienor through a release of lien form or a waiver.  




If you are considering filing a construction lien lawsuit, a Florida construction attorney may be able to help. The Boutty Law firm is a Winter Park law firm that helps clients with construction liens as well as commercial and real estate law. For more information on how we can assist you, contact us today at (407) 537-0543.


5 Facts About Construction Liens in Florida – (Part 1)


When working with a construction’s liens, knowing what laws
and rules apply to your situation can make a big difference in securing a
successful outcome. There are several state-issued guidelines that govern the
notice, handling, and qualifications for construction liens. These five tips
will help you understand what is needed to comply with construction lien laws
in the state of Florida.





  1. Notice to the Owner is Mandatory




It is important to give notice to
the owner after initially providing labor or materials. If this is not done,
you may risk losing your construction’s liens rights. Any parties who do no
contract directly with the property owner must serve a notice to owner with 45
days of providing labor and or materials to the project. The two exceptions to
this rule are:





  • Individual workers who do not require a notice
    to owner
  • Engineers or other design professionals




Direct contractors may provide the property owner with a
list of subcontractors and suppliers that are involved with the project. The
contractor is required to provide this information within 10 days. The
following rules apply to issuing the notice:





  • If hired by a general contractor, the notice
    should be sent to the property owner
  • If the work is hired by a subcontractor, the
    notice should be sent to the property owner and the general contractor.
  • If hired by a sub-contractor, the notice should
    be sent to the property owner, general contractor, and the sub-contractor.
  • If you are unaware of the specific parties,
    Florida law will allow you to reply on specifically publicly available
    information.
  • When sending the notice to the owner, it must be
    sent via certified mail with a return receipt requested.




  • A Construction’s Lien Must be Filed Within
    90 Days of Last Labor




In the state of Florida, construction’s liens must be
recorded within 90 days of the last labor completed or materials provided. The
three-month period begins when the majority of the work is complete, and
corrections to work or warranty work cannot be used towards establishing the deadline.
For rental equipment companies, the last date of use is the last date that the
equipment was on site and available to the designated parties.





3)  You Must Qualify for Lien Rights in the
State of Florida





Lien rights are not automatically granted to all citizens in
the state of Florida. Generally, the state grants lien rights to contractors,
subcontractors, material suppliers, rental equipment companies, manual
laborers, and other professionals. You are not required to have a written
contract for a construction’s lien. The contract may be oral, written, or
implied.





Those who do not qualify for construction liens in Florida
include:





  • Sub sub-contractors
  • Suppliers who supply to other suppliers
  • Suppliers to sub sub-contractors
  • Laborers who do not meet license requirements in
    the state of Florida
  • Maintenance workers




The Boutty Law firm is a Winter Park law firm that helps
clients with construction liens, as well as commercial and real estate law. For
more information, contact us today at (407)
537-0543.


5 Risks of Purchasing a Foreclosure


There are many ways to make money in the real estate
industry, and people are always looking for an opportunity to invest. In some
cases, an investor may consider purchasing a home which has been foreclosed, as
foreclosed homes normally come with low asking prices. But is it really worth
it to buy a foreclosure, and will your investment pay off in the end? Continue
reading why it may be difficult to get a return on a foreclosure investment.





  1. You
    will be purchasing the house “as is”




Foreclosures occur when a lender
repossesses a property from a borrower who failed to maintain the mortgage
payments. The lender then offers the home for sale at a public auction for
foreclosures. The highest bidder at the auction will purchase the condition as
is, meaning there will be no improvements to the property prior to purchase,
and all liens, unpaid taxes, and encumbrances will come with the property.





  • The
    property may still be occupied




There are few things more awkward
than buying a new home and immediately having to evict its previous owners
because the property is still occupied. Unless you are familiar and experience
with the process of evicting tenants, it’s helpful to have an attorney delegate
this process for you.





  • There
    won’t be any inspections




Normally, when you purchase a
property that is not a foreclosure, you have the opportunity to have a formal
inspection: first, when you visit the open house, and second at the time of
purchase. When the home is a foreclosure, however, there will not be a professional
inspection of the property, and chances are you will not enter the home prior
to the foreclosure auction, either. Without an inspection, you will not be able
to see what kind of condition the property is in or what repairs will be
needed.  





  • It
    can be time consuming




The process of purchasing a
foreclosed property is not the same as purchasing a regular property. Buying a
foreclosure is more complicated as the process includes waiting periods which
vary depending on what state you live in. Also, if you are purchasing the
property from a bank, there are often multiple forms and approvals that are
necessary to make the purchase. Purchasing a foreclosure can have many delays,
and if the previous owners file for bankruptcy protection, it may even stop the
sale.





  • The
    property may not actually pay off




In the beginning, the lower price of
a foreclosed property may seem enticing, but in the long run, it may not turn
out be a good deal or a wise financial investment. After spending money to
remove the liens, complete all the necessary renovations, and pay back taxes,
the payoff for the property may leave you feeling disappointed.





      The Boutty Law Firm is experienced in helping individuals and
families throughout central Florida with foreclosures and other legal real
estate matters. For more information, contact us at (407) 537-0543


What Not to Include in a Will


Many people are aware that creating a will is a good way to
protect your wealth and ensure that your assets are passed on to your
beneficiaries. You may not be aware that there are some assets that you should
not include when writing your will. Property that already has laws governing
its distribution should not be included. The following types of property should
be excluded when writing your will:





  • Transfer
    on death property
    : These assets do not need to be included in a will
    because they pass automatically to the person who was named a beneficiary on
    the account. Transfer on death assets include real estate, vehicles, and stocks
    and bonds.
  • Pay on
    death bank accounts
    : Similar to transfer on death property, these types of
    assets go directly to the beneficiary after the account holder passes away.
  • Property
    with a right of survivorship
    : Some property is communally owned by more
    than one party, and if the asset has a right to survivorship, the surviving
    party will take ownership of the property at the time of the other party’s
    death. It cannot be transferred onto beneficiaries in a will as long as one of
    the joint owners is alive.
  • Life
    insurance and annuity benefits
    : These assets cannot be included in a will.
    The benefits of a life insurance policy or annuity are automatically passed on
    to the designated beneficiaries at the owner’s time of death.
  •  Proceeds from 401k and other accounts:  401k accounts, retirement plans, IRA’s and
    pensions all have a similar payout policy as life insurance: only those named
    as beneficiaries receive the funds after the death of the account holder.




What you should include in your will





After reading the above exceptions,
you might be wondering what types of assets you should include in your will.
The good news is the answer is fairly simple: all other assets. Generally
speaking, any asset that is not automatically paid or distributed upon the
death of the asset holder should be included in the will. If you are unsure of
which assets you have, consider keeping a notebook that lists all your
different assets to see which should be included and which should be left out.
Keep this with you until you are ready to write your will. If you are unsure,
you may seek the assistance of an experienced estate planning attorney to help
you review your assets and decide what should be included in your will.





You do not need to wait until you have built significant wealth or assets to begin drafting your last will and testament. The Boutty Law Firm is a Central Florida law firm that has helped many families protect their wealth and assets through estate planning. We assist in the writing of wills, as well as other estate planning services, such a probate and estate administration. For more information on wills and to get in touch with an estate planning attorney, call our Winter Park office at 407-537-0543.


6 Tax Deductions for Businesses


Many entrepreneurs know that there are lots of things to include on their business tax returns to help them manage the costs of running a business. While there are limits as well as timing constraints, most expenses can be written off and this is definitely something to take advantage of this upcoming 2018/2019 tax season. Many of the same type of deductions that apply to sole proprietorship can also be used for other business entities including C and S Corporations, limited liability companies, and partnerships. Depending on what type of business you have, the rules may apply differently to you, but more than likely you’ll have much to gain by considering these potential tax deductions for your business:





  1. Wages and Salaries




Most forms of payment to employees are
considered tax deductible expenses for businesses. These include bonuses,
commissions, and taxable fringe benefits, in addition to the common salaries
and wages of employees. Employee payment should not be confused with payments
to sole proprietors. Payments to these entities are not considered wages, and
are therefore not tax deductible.





  • Freelance and Contract Labor




Similar to employee wages, payments to
independent contractors and freelancers are deductible business expenses you
can claim on your taxes. In order for the deductible to be valid, the
contractor or freelancer will have needed to have been paid a minimum of $600
for the year, and it will be required that you issue a 1099 tax form.





  • Business Supplies




All great businesses need resources and
supplies to run effectively. The good news is that in most cases you are able
to include these supplies on your tax form as a deductible. These supplies are
deductible business expenses if they are purchased or furnished to customers.





  • Car and Truck Expenses




Operations and transportation is a huge
element and a source of expenses for many businesses. Most small businesses use
some type of vehicle, and the cost of operating the vehicle is deductible, but
only in the case that there are records to prove business usage. When deducting
costs, it is not required to keep receipts of expenses if you use the IRS
standard mileage rate of 54.5 cents per mile for 2018. The standard mileage rate
can be used regardless of whether you lease or own the vehicle.





  • Utilities




If you didn’t already know, the electricity
bill for powering your business facility is fully deductible from your business
taxes. This can include mobile phone expenses as well as a second landline from
your home office.





  • Rent




Luckily, the rent for your business space
is also deductible from your small business taxes. This applies regardless of
the size of the facility or whether it is an office, boutique, factory, or
other facility.





The Boutty Law Firm works with many small businesses
across Central Florida, from corporations, to partnerships, and more. For legal
assistance with your commercial business needs, contact our law firm at 407-216-2766.


5 Important Things to Do After Writing a Will

So you’ve decided to think ahead and plan for the future by writing your will. Congratulations, you’re much more prepared than most people who postpone writing a will until the last minute or forgo one altogether. But is simply writing a will enough? It might not be if you want your loved ones to be fully prepared and informed of your wishes. Here are some things to consider creating once you’ve completed the writing of your will:

  • A List of Accounts


Generally, a will can tell you how an individual’s assets and property are to be distributed once they die. However, a will can leave out a lot of information such as how to access the assets. Consider leaving a list of accounts that your loved ones will be able to access. Include things such as bank accounts, credit cards, mortgages, and personal loans.

  • A Password List


Few things will be as frustrating as realizing you’ve inherited an important financial asset but have no means of accessing it online.  Login names, pin numbers, e-mails, and passwords are all important parts of an online account’s security. Keeping a list of passwords and other sensitive information pertaining to your will is a smart move and your relatives will thank you for it.

  • Note of Investments


Like a list of accounts, the inheritors of your assets will want to be informed of whatever investments you have in your name. These can include stocks, bonds, annuities, life insurance policies, retirement assets, and other investments. If you have a broker or agency that helps manage your assets, be sure to include their contact information.

  • Funeral Plans


If you’re facing an illness, or simply want to have all the details of your funeral taken care of ahead of time, you can have specific instructions left to your loved ones for your funeral arrangements. You can even plan your burial, funeral, or cremation in advance. If you want to lift the burden off your loved ones, you can also set aside funds to cover your funeral costs.

  • Instructions For Your Will


Last but not least, it’s good to discuss everything with your family ahead of time and let them know you’re planning to have your will, investments, and other financial accounts prepared for when you pass on.  Give them instructions on where to find your will, your list of passwords and accounts, your funeral plans, and other important details. Explain to them what your wishes are and how you would like to have the assets of your will distributed once you pass on.  Being proactive in your will can help save your loved ones much stress and concern, and provide peace of mind to you that your desires are carried out in the end.

The Boutty Law Firm assists individuals in Central Florida prepare for their future with wills, probate, and estate administration services. Contact us for more information.  

11 Unlicensed “Contractors” Arrested in Sting

An undercover sting operation targeting unlicensed contractors and contractors without workers’ compensation insurance in Manatee County recently resulted in 11 arrests.

The three-day operation was a multi-agency effort that included the Florida Division of Insurance Fraud, the Department of Business & Professional Regulation, the Manatee County Sheriff’s Office, Holmes Police Department and Manatee County Code Enforcement.

The 11 men were each charged with working as an unlicensed contractor and working without workers’ compensation. All 11 were also fined by code enforcement and issued a cease-and-desist order.

Investigators set up the operation at an uninhabited home in Manatee County and contractors were called to perform jobs at the home.

If convicted, the defendants all face up to five years prison for each workers’ compensation charge. For the unlicensed-contractor charge, they face an additional year in prison if they are a first-time offender, or five years for repeat offenders.

Anyone with information about suspected insurance fraud should call 1-800-378-0445. Tipsters can remain anonymous and be eligible for up to a $25,000 reward through the Department of Financial Service’s Anti-Fraud Reward Program.

Professional licenses can be verified online at www.myfloridalicense.com.

Read the full story at: https://www.bradenton.com/2015/02/14/5635584/11-arrested-in-undercover-sting.html 

Unlicensed Contractors Beware!

Florida Statute 489.128 provides that “contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.”  Furthermore, “no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto.”

The Supreme Court of Florida solidified prior case law and affirmed Florida Statute 489.128 by ruling that an unlicensed contractor cannot sue for breach of contract, even when he has been wronged and even when the party against whom he is seeking relief knew of his unlicensed status.

In Earth Trades, Inc. v. T&G Corp., the Defendant, a general contractor, subcontracted with the Plaintiff, who was unlicensed under Florida law at the time, to perform work on a parking garage. After a dispute, the Plaintiff sued the Defendant for breach of contract. The Defendant then counterclaimed for breach of contract. During litigation, the Defendant argued that because the Plaintiff was unlicensed, its breach of contract claim was barred under Fla. Stat. 489.128.

Upholding the 5th District Court of Appeal’s ruling in the case, the Florida Supreme Court stated “…the Legislature has imposed a substantial penalty on the unlicensed contractor as the wrongdoer with regard to a construction contract. Under the amended section 489.128, the unlicensed contractor has no rights or remedies for the enforcement of the contract.” The Court went on to state that a party’s knowledge that a contractor or subcontractor does not hold the state-required license to perform the construction work of the contract is legally insufficient to establish the defense that the parties stand in pari delicto (both parties are wrongdoers).

Unlicensed contracting is a crime for which a first offense is a first-degree misdemeanor and a second is a third-degree felony. § 489.127(2)a-b, Fla. Stat. (2013). In addition, DBPR may impose a fine of $10,000 on any person found guilty of unlicensed contracting. § 489.13(3), Fla. Stat. (2013).