Here’s an excerpt of my post.

The recent changes to Va. Code §43-3 (effective July 1, 2012) clarify several points regarding the allocation of lien amounts to individual lots.  The main points of clarification are as follows:

• Common areas are explicitly excluded from the “denominator” of the lien allocation equation.  In other words, where there are 10 home sites and one common area, a site or utility contractor no longer needs to worry if it should allocate part of its lien amount to the common area and can safely allocate the amount owed to the ten home sites.
• Traffic signalization, and installation of electric, gas, cable, or other utilities are explicitly included in the definition of “site development improvements
• Any payments to the contractor for which the owner/developer does not designate a particular lot will apply to any previously sold lot and the remaining lots will continue to bear their share of the liability.

Check out the entire post and thanks to Scott Wolfe for giving me the opportunity, yet again, to post at his great mechanic’s lien resource.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

ConsensusDOCS General Contracting Contractual Relationships (Photo credit: Wikipedia)

I have discussed the ConsensusDOCS here at Musings on a few occasions.  These relatively new form documents, endorsed by the AGC among other trade organizations, are a great counterpoint to the AIA documents that we all are more than familiar with and as construction attorneys and contractors have likely reviewed on numerous occasions.

Recently, these documents have joined the parade and have taken to the cloud.  The folks at ConsensusDOCS made this move to ease the type of collaboration that I have discussed must occur on construction projects among the players.  The use of the cloud based technology is one of the first uses of this technology to increase productivity.

Of course, like with any form documents, either use the ConsensusDOCS as written or not at all because they have been drafted to work together as written.  Changing the wording of any set of form contracts in places aside from the “fill in the blank” areas can only lead to inconsistencies and work for your lawyer should something go wrong.

I encourage you to review the ConsensusDOCS and poke around the new web based interface and then come back and let me know what you think.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Musings, we welcome back Rob Mathewson (@geedrarob) of Geedra. Rob has spent twenty years in sales and marketing management roles with experience in industrial, consumer and construction markets. Rob believes the construction industry is ripe for innovation, based on its massive size, yet low productivity. Even with such inefficiencies, a building still rises from the ground. Rob’s goal with Geedra is to leverage technology to increase transparency and communication so that projects can be completed with less risk, effort and cost. Prior to founding Geedra, Rob was the Chief Marketing Officer for Construction Documentation Services, where he was responsible for sales, marketing and business development. He spent 15 years in the chemical distribution business, including eleven years as the Northwest Branch Manager of a $50 million distributor. Rob was the founder and CEO for On The Spot Games, a board game startup.

I LOVE construction operations directors (“Super O’s”). They live for creating systems that enable their organizations to deliver hundreds of millions of dollars in construction projects each year. If you are ever lucky enough to get one of them to look away from the daily hum of their operations and get him talking about the systems he’s built, you get the sense that there is nothing that can’t be broken down into a series of repeatable steps that deliver predictable results.  Well, almost nothing.

It’s my unenviable task to engage these gentlemen* in a discussion about their systems for collecting and organizing their construction photos. As Chris and I have discussed before, photos are a critical component of construction documentation. The Super O’s know this better than anyone. So, they craft meticulous file folder systems and procedures for the proper storage of project photos. A photo filed away using a Super O’s system should be as easy to find when it’s 12 months old as it is when it’s 12 minutes old. That is, assuming the individual who took the photo followed the system. Hmmm, did I say assume?

That assumption is the problem. Experience shows that, in the heat of the day-to-day construction battle, individuals don’t follow filing systems uniformly. Sometimes they’re distracted; sometimes they make what seem like obvious interpretations. But in the end many critical photos get misfiled and the best systems in the world can’t bring them back. Unlike a misfiled document, there is no such thing as a global keyword search for a missing photo. Once that photo is missing, finding it is akin to finding a needle in a haystack.

*My apologies if you are a lady in this position, because if so, I haven’t found one of you yet. But I keep looking!

Rob and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

UT Dallas 74,000-square-foot (6,900 m2) Student Services Building (Photo credit: Wikipedia)

As readers of Construction Law Musings can attest, I am an enthusiastic (if at times skeptical) supporter of sustainable (or “green”) building.  I am solidly behind the environmental and other benefits of this type of construction.  However, I have likened myself to that loveable donkey Eeyore on more than one occasion when discussing the headlong charge to a sustainable future.  While I see the great benefits of a privately built and privately driven marketplace for sustainable (I prefer this term to “green” because I find it less ambiguous) building stock and retrofits of existing construction, I have felt for a while that the glory of the goal has blinded us somewhat to the risks and the need to consider these risks as we move forward.

Another example reared it’s ugly head recently and was pointed out by my pal Doug Reiser (@douglasreiser) at his Builders Counsel Blog (a great read by the way).  Doug describes a project that I mentioned previously here at Musings and that is well described in his blog and in a recent newsletter from Stuart Kaplow (@stuartkaplow), namely, the Chesapeake Bay Foundation’s Philip Merrill Environmental Center project.  I commend Doug’s post for a great description of the issues, but suffice it to say that the Chesapeake Bay Foundation sued Weyerhauser over some issues with a sustainable wood product that failed.  While the case was dismissed on statute of limitations grounds, the case illustrates issues that arise in the “new” sustainable building world.

While at bottom, the legal considerations for us construction attorneys are not all that different (breach of contract, construction defects, failure to meet plans and specifications), some of the risks inherent in the process are either new or old ones wrapped in new materials.  In short, we’re using old materials in new ways and using new materials that hadn’t been used before in these types of projects.  This means that we don’t have the years of engineering data to back up proper use of these materials and this can lead to issues over time.

My fear is not that energy efficiency and other benefits of sustainable building will not be met, but that failure to see and anticipate these risks will lead to setbacks in the process. On major problem with a “green” project (LEED or otherwise) will do more to slow the process than taking our time and doing things right the first time.  As my dad used to say:  its better to be 5 minutes late than speed to be there “on time” and get a speeding ticket that slows you down even more.

Thanks again to Doug and Stuart and please let me know your thoughts.  Am I off base?  What do you think?

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

This week, Musings welcomes Michelle Mangen to the Guest Post Friday fold.  Michelle’s vast talents and expert skills in accounting, bookkeeping and Excel, far exceed the average virtual assistant’s scope of knowledge; thereby further enhancing not only her back-end office, but those of her clients.   Extending administrative and other remote admin services to her global client base, Michelle creates personalized virtual assistant solutions for each and every client, ensuring 100% customer satisfaction, loyalty and professionalism.

Her core services are: Social Media Management: (Facebook Fan Pages, Social Bookmarking , Twitter, etc.),  Aweber, WordPress site management, Bookkeeping and Excel spreadsheets. Additionally she offers administrative services as well.  You can reach Michelle at www.TheVirtualAsst.com or follow her on Twitter at @mmangen.

Larger law firms have the resources at their disposal to place expensive TV ads or billboards along the highway to garner new clients and to establish their brand. Smaller law firms could gain a competitive edge on these larger firms by taking advantage of many of the tools and resources (many free) that would enable them to dominate local search results through the use of Social Media.

By utilizing your own website as your content hub many of the following ideas could be implemented at little or no cost:

• Blogging – this alone has innumerable benefits to your marketing campaign
• Creating whitepapers and allowing other attorneys to use the content in a cobrand situation
• Hosting a weekly or bi-weekly Q&A session around a specific topic and publishing to your website as a podcast
• Submitting their practices to the many local search engine profiles (Google Local, Bing, Yahoo!, Superpages, etc.)
• Participating within LinkedIn groups and the Questions & Answers area
• While your gut reaction may be to avoid Facebook it’s currently the fastest growing website with the greatest increase in the 55+ and older category
• Twitter
• Becoming a volunteer at AllExpert.com (January 2010 had over 5.3 million unique visitors to the site according to Compete.com)
• Submitting articles (or re-purposing blog posts) at sites like Ezine and GoArticles
• Online press releases to sites such as PitchEngine and PRWeb

So how does an overworked attorney maximize all of these areas? One of the easiest and most effective ways would be by partnering with a Virtual Assistant who is familiar with and practices Social Media for their own business.

Here are just some ideas to get your creative juices flowing:

• Have a virtual assistant do the necessary research for references you would like to include on your blog (landmark cases, etc.)
• Find free stock photos that can be included in your blog posts
• Proof and / or edit posts before they go live
• Schedule your blog posts and depending on your website platform install plugins that allow for your blog posts to be spread automatically to various platforms (such as Twitter, Facebook and LinkedIn)
• Submit previous instructional blog posts to article directories
• Set up and maintain all local search engine profiles
• Submit press releases announcing new hires, won cases, etc.
• Schedule podcast sessions and upload to website after the event
• Prepare and send out monthly newsletters

Aside from the ideas mentioned above there are many more ways a Virtual Assistant could assist an attorney or small law firm to gain new clients at a cost that is minimal in comparison to pricey yellow page advertisements.

At this point you may be asking how to find a good social media virtual assistant. I’d first suggest asking your network if any work with one. If that yields no results then you can turn to Twitter, LinkedIn or Facebook.

Once you find a virtual assistant who you feel may be suitable check out their website to see the if they have their own blog and monthly newsletter.

By just doing those few steps you will quickly narrow down the list of potential Virtual Assistants who may be able to help your firm grow its online presence.

One last thing I’d suggest to properly monitor your growth is to start with benchmark numbers on anything that can be obtained – your Google Analytics, Twitter following, LinkedIn Connections, etc. so you can document the growth you achieve through your newly established efforts.

If you would like more tips and tricks on leveraging Twitter for your business I invite you to download a free copy of an e-book I co-authored: Leveraging Your Power through Twitter. Enter code: BIZCARD at the checkout screen to receive it at no cost.

Now you’ve been given some food for thought. What other ways can you see utilizing a Virtual Assistant to grow your online presence?

As always, Michelle and I welcome your thoughts and comments below.  Also, please subscribe to keep up with this and other Guest Post Friday posts.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

While you wait, please check out the Guest Post Friday page and, if you are interested in joining the parade, check out the guidelines and then let me know what you’d like to contribute.

Thanks to everyone past, present and future who’s contributions to this series have made this construction law blog so much more interesting.

Image from stock.xchng.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Here’s a short excerpt:

As a litigator and counselor I almost (though not quite) always recommend mediation at some point during the process. A majority of the time, the infusion of the mediator’s perspective results in a settlement if not that same day, then later. In those rare cases where mediation has not resulted in a settlement, the process has been worthwhile.

In general, my experience with construction mediation is quite positive. Without going into many of the details (for more on my thoughts, check out the ADR Page at Construction Law Musings), mediation allows the flexibility and freedom for business people to make business decisions that result in a more satisfactory result than the lost time, expense and uncertainty of litigation.

For the whole post check it out here.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Image via Wikipedia

On at least one occasion here at Construction Law Musings, I have discussed the need to operate your business as a corporation or LLC.  The primary reason that I, as a construction attorney, recommend this is for the liability protection against attacks on your personal assets.  Proper use of incorporation can and does protect your home and other personal assets from attack by creditors with a firewall of sorts that separates your business liabilities and assets from your personal ones.

However, the Henrico County, Virginia Circuit Court recently reminded us all why I italicized “proper” in the last sentence.  In ACE Electric Co. Inc. v. Advance Technologies Inc., the Virginia court considered a lawsuit by ACE Electric against Advance, a defunct engineering firm, and the owner and principal of Advance, Erik Butler.  The suit revolved around the improvement of boilers at the University of Richmond, here in my home town.  The essential facts are that Mr. Butler assured ACE and the university that his company was well qualified to take on the project.  As the project progressed it became abundantly clear that the assertions were untrue.

Under most circumstances, even in a case such as this where fraud could have been alleged, the claims against the principal of the company would not have worked out for the plaintiff.  However, in a somewhat unusual decision, the Henrico, VA court found that, aside from failing to keep separate corporate and personal books and failing to maintain the “corporate formalities” required for the basic protections,

[I]t would work a profound injustice to allow Mr. Butler to escape liability for repaying this debt

In short, the court allowed ACE to “pierce the corporate veil” and attack Mr. Butler’s personal assets.  Such a result was clearly much better for ACE because its judgment will not go into the trash heap of judgments against defunct or judgment proof companies (barring an appeal and reversal).

The takeaways?  First, always explore the possibility of veil piercing of the type found in this decision, you may be able to get better leverage and a more collectable judgment.  Second, and possibly most importantly, assure that you as a construction company take the fairly minimal steps necessary to assure that your company is protected against just this sort of attack.  Make sure that you keep your corporate and individual books, expenses, liabilities and assets separate (particularly in the case where you, like me, are either the only member of the company or are in a small company that passes through its taxable income).  Also, assure that you keep a paper trail of corporate formality intact with the State Corporation Commission.

Taking these fairly simple steps and with the help of an accountant and attorney, incorporation will provide solid protection against those wishing to attack your personal assets.  As the ACE decision described above reminds us all, failure to take these steps can lead to disaster.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Newport News, Virginia U.S. Post Office and Court House (1941) (Photo credit: Wikipedia)

Well, I’m back from vacation and almost dug out from under the stack that was on my desk when I returned and can now get back to Musings.  Thanks for awaiting my return (I’m sure it was with baited breath )

I have spoken here at Construction Law Musings on the Dragas line of cases that essentially came to the conclusion that no good deed goes unpunished.  Just last week, while I was happily at the beach, the Eastern District of Virginia Federal Court decided a case that required an insurer to defend a Chinese Drywall claim against a general contractor.

In Builders Mut. Ins. Co. v. Parallel Design & Development LLC the Court considered a declaratory judgment action by the insurer, Builders Mutual, where the insurer attempted to utilize the “Your Work” and pollution exclusions to try and avoid providing a defense to Parallel.  In that case, a homeowner filed a claim in Virginia state court seeking damages for the health and other noxious effects of the Chinese drywall found in her home and for the cost of medical monitoring required due to these effects.  Of course, Parallel sought to invoke its rights under its insurance policy.

Upon hearing the arguments by Builders Mutual (many of which were strikingly similar to those made in the Dragas cases), the Newport News, VA division of the Eastern District of Virginia determined that Builders Mutual did have to provide a defense and possible indemnity for these damages.  In making this decision, the Court determined that the term “pollutant” found in the policy was ambiguous and therefore the ambiguity worked against the insurer.  Furthermore, it determined that the localized nature of the issue made this particular type of noxious emission fall outside of the typical environmental pollution.

The Court went on to conclude that because some, if not all, of the claims made by the homeowner fell outside of the property damage scope of the “Your Work” exclusion in the policy, Builders Mutual was obligated to defend Parallel.  In short, Builders Mutual was on the hook to provide a defense.

Without seeing the particular language of the policy at issue, I cannot give my take on why this conclusion was different from some of those in the Dragas cases.  All I can say is that a careful reading of your CGL policy with the help of an experienced construction attorney is key to arguing these types of claims.

What are your thoughts?

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

(Photo credit: Wikipedia)

As you read this, I am happily taking a break from my construction law practice and hanging at the beach enjoying some spring break fishing and family time on Sanibel Island, Florida. Musings will pick back up again next week.

In the meantime, check out the recently added Alternate Dispute Resolution page to hear my thoughts on construction mediation and arbitration.  Also, be sure to read the Guest Post Friday page to catch up on some of the great contributions from my friends in the construction, Web 2.0 and legal worlds.

Thank you for your continued readership and I’ll see you next week.

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

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.