FAQ

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When finding and hiring a contractor, make sure you do your research, not only by obtaining multiple bids and researching a contractor’s business history, but make sure you hire the right contractor that is experienced with jobs similar to your project.

Speak Up and Be Clear

If a contractor is not performing the work satisfactorily, speak up! Make sure you and your contractor have a solid understanding of the work to be performed and how you envision your completed project. Provide photographs of how you’d like your project to look, if you have them. If you are not satisfied with the work performed at any stage of the project, speak up and let your contractor know that.

For example, if you don’t like how a particular paint color looks on your walls and the contractor is halfway (or even a quarter) done, let them know that immediately if you don’t like it or it does not meet your expectation. This way, if you decide to change colors, the contractor can immediately begin working on your new color(s) instead of your paying the contractor to finish the paint project that you don’t like, only to recreate it with the new color(s). Also, some colors are harder than others to cover (i.e., reds and purples) because they can “bleed” through the new paint color. This will require additional time for the contractor which will then, in turn, cost you more, not only for new paint, but for the contractor’s time and additional material.

If you are an investor and your project is out of state or out of town wherein you cannot monitor your project on a consistent basis, make sure your contractor is sending you photos on a regular basis so you can obtain a better understanding of how your project is coming to fruition.

Take photos throughout the process.

This is vital to a homeowner. Be sure to take “before” photos. If a contractor doesn’t provide satisfactory services, “before,” “during,” and “after” photos will assist in defending your case should it proceed to litigation. Nobody likes to go to court, especially due to the expense of attorneys, experts, etc. However, if your contractor agrees to perform such work in a timely and in an acceptable manner agreed by both of you, should their work turn out to be substandard, you have photographs that will assist the court in understanding your needs and wants for the project. Also, if you can, it would be helpful to date stamp the time on your photos with your camera (if your camera has this feature).

Keep realistic deadlines. A contractor will usually provide you with a timeline of when they will be doing specific projects. Many things can hinder that schedule, including inclement weather, short-staffing, and the need to purchase unexpected additional material to complete your project. This is common.

However, communication with your contractor is key so you both have that understanding.

If you have questions about your contractor-homeowner relationship or you suspect that it may have gone awry, contact a construction business attorney today. At Hunsaker | Emmi, we defend homeowners in these situations and help them figure out what to do next.

Construction defect is a very difficult term, first of all, to identify and define, because it’s a broad scope. It really is a manifestation of a problem in any type of construction, which would include, landscaping.

Any type of contractor work that they do to residential or commercial real estate for purposes of improvement falls into the category provided that there’s something wrong with it.

It doesn’t apply to aesthetics. It applies to the expectation that you wanted it done a certain way and it’s not done that way, but it excludes aesthetics. But by way of example, you have a landscaping project and they’re putting an outdoor fireplace in and they’re running a gas line to the outdoor fireplace and the gas is leaking. That would be a defect, because you reasonably would expect that gas not to be leaking.

Or if they’re putting a roof on your house and they forget to put the felt membrane down ahead of time, or they use the old one that’s on there, that would be a defect. Or they create a situation on your roof where water dams up and doesn’t run off, that would be a defect.

It’s varied and it goes to all contractors in all areas of specialty.

If you want more information on a construction defect please reach out. If you’re wondering how to prove a construction defect occurred you should talk to a lawyer. The question isn’t so much, “How do I prove a construction defect occurs?” The question is more of, “how would a lawyer prove at a trial?” That’s really more of an intimate legal thing. If a client came to me and said, “Yeah, I’ve got this issue,” it’s now my job to figure out whether it’s a defect or not.

Part of what benefit I bring to the client is I have a long history in the construction industry. I’ve personally built and remodeled residential real estate projects and have a life-long understanding of most construction issues.

I’m able to identify, just by the conversation, most parts.

If this is the case, how do you protect yourself in the event of a mishap? How do you protect the investment you’re making in your home? You cannot necessarily prevent the defects from occurring, but you can protect yourself in the event that they do– by hiring an attorney.

A lot of people don’t involve a lawyer at the onset of hiring a contractor because they do not see a need. But truthfully, always, 100 percent of the time, it is cheaper to have the lawyer involved at the front of the contracting than it is at the back end. Your attorney will know to check things that you wouldn’t realize you should check.

An attorney will make sure that the contractors or construction company has verifiable insurance and prevailing party provisions. A prevailing party provision is the provision in a contractor’s agreement that says, “In the event the contractor has to bring suit to collect money owed from the homeowner, the contractor is entitled to all reasonable attorneys’ fees and cost.”

What it doesn’t say, and what many don’t say, is, “If any litigation is brought pursuant to this contract, (not just for payment due from the homeowner for work performed by the contractor), the prevailing party shall receive reasonable attorneys’ fees and cost.”

It’s is a double‑edged sword for the standpoint that if you do bring a construction defect claim, and you lose, you will be responsible for their attorneys’ fees and cost. It protects you in the event that you win, and protects them if you lose.

Always remember it is better to be safe than sorry. Contact an experienced construction attorney today to guide you through the construction and legal process.

If a contractor violates zoning regulations, it would fall under a breach of contract case or a defect case (for the purposes of insurance).

What you risk when you do not follow zoning regulations is fines and time. Ultimately, the consequence in a lot of counties is that they will make you tear down that structure, or completely rebuild that structure. Rebuilding a structure takes time, effort, and money—some that you or your company may not be willing to lose.

Not following zone permits has the same consequences. If you do not follow the permits correctly, you could be fined. In some cases, if you can prove that it was done correctly—the zoning, the foundation, et cetera—you could be fined, given a warning, and then allowed to continue. That’s a rare circumstance.

In a lot of the cases, if something is done wrong, and the building inspector or city finds out it’s done incorrectly, they’ll make you or your company tear it down, especially a zoning violation, which can be: building too close to other properties, too close to public properties, or building a residential property on a commercial property.

You’re not going to have a discussion about it beyond that. What you risk is all the money you spent getting to that point and all the money you’re going to spend in terms of fines, potentially attorney’s fees, and reconstruction and demolition.

Please contact us for more information if you are having problems with zoning regulations.

Absolutely, although it has to be a material problem. If the seller didn’t tell you there’s a hole in the backyard that you could fill with one wheelbarrow full of dirt, you can’t back out of the contract. It has to be something that you wouldn’t be able to discover in the ordinary course of an inspection.

For example, in a recent case, a party bought a home and the seller knew that there were problems with the roof. In fact, the county had notified the seller that there had been problems with the roof, and the seller just declined to include that on the disclosure documents.

Most likely the seller, as well as the broker, since he knew about too, will be liable. One email between the broker and the seller that was obtained conveyed the message, “Ignorance is bliss. We don’t need to say anything.”

It does happen and it happens frequently. But yes, you could back out of a contract. In fact, if you already had a contract and you closed on the house, you could still go after the seller and potentially the broker, if necessary.

Standard contract to buy real estate in Colorado, which are approved and is to be used by all the real estate brokers, do have a prevailing party provision where whoever prevails in the lawsuit is responsible for the other party’s damages.

But if you’re suing on a breach of contract, and this breach of contract only has a three‑year statute of limitations, it works a little differently, because construction defects change. You can’t go back and get out of a contract on a construction defect that you discover afterwards unless it’s reasonable to assume that that prior owner knew of that defect.

If you bought a house from a prior owner two‑and‑a‑half years ago and you discover that one section of the roof didn’t have the tar-paper replaced when the roof was repaired, and there was no way that the previous owner knew that, (perhaps because he bought it from someone else), then you’re not going to be able to go after that owner, (although you could potentially go after that contractor).

The mining industry is very tricky from start to finish. A lot of people are familiar with the traditional buying and selling of real estate, and even traditional buying and selling of commercial real estate, because they’re used to this on a daily basis. People buy a home; they’re familiar with the process. There are real estate brokers that are familiar with the process that don’t have to be lawyers to understand, because it’s not an incredibly complicated process for the most part.

Mining is different, and that’s because there are various classifications on the type of mining land there are. For example, there are patented and unpatented mining claims. A patented mining claim is almost the same, or analogous to, owning the property. If you’re a homeowner, you may familiar with a residential contract.

An unpatented mining claim is just the right to mine and take the minerals of that property, and you have to reclaim the property. You can’t build on it for purposes other than for mining property. You couldn’t build your house there or anything on those lines.

There are also issues with respect to locating the mining claims. It’s a very tricky to say the least. We’re still operating under the mining laws of 1892 with amendments. Needless to say, it is not a simple area.

There are not a lot of mining lawyers out there. A lot of people will hire their regular lawyer; perhaps he or she helped them through a divorce for them or with a contract. Lawyers get involved in those without realizing exactly how difficult and how extensive this area of practice is.

There are a lot of pitfalls that you could fall in. I couldn’t tell you a single client of mine that’s had a mining issue that hasn’t come to me with a clean mining claim that didn’t need to be fixed immediately. If you run the risk, you pay a lot.

Mining is not cheap— many times it can be in the multi‑millions if you’re buying an established claim.

The point is, the lawyer should be part of every mining business and it should not just be a lawyer. It should be a mining lawyer. A mining lawyer can help you through every process and ensure that what you are doing is correct under the eyes of the law.