Florida Community Association Construction Law Blog : Sarasota Construction Lawyer & Attorney : Tannenbaum Scro Law Firm : Florida, Tampa Bay

Most owners hire a general contractor for major repair projects based upon the track record of that contractor on similar projects.  But the reality for most general contractors is that performance varies from job to job.  Although there are a variety of possible causes for this variability, perhaps the most significant is the fact that different project superintendents and subcontractor crews show up to undertake one project versus another.  In essence, although your contract is with the "company", the odds of securing peak performance on your job is highly dependent on the particular superintendent and subcontractor crews who are assigned to your job.

In one job our firm was involved in (after the fact), it was disclosed in the course of discovery that the superintendent involved had been hired by the general contractor a week before the job began and was fired at the conclusion of the job.  In the end, the job in question ended up being the "tryout" with the company for this superintendent, a "tryout" that did not fare well, much to the detriment of the owner.

An owner can leave it to the discretion of the general contractor to assign the project superintendent and subcontractors for their job, hoping that the general contractor will assign their best superintendent and subcontractors.  But there is an option.  As part of the bid process, an owner can require that the bidders provide the resumes of the superintendents on their staff, as well as the subcontractors anticipated to be utilized for the job.  In inquiring of references, the owner can ask the references who the assigned superintendent and subcontractors were for their job.  If the owner wants to be even more in depth, it can inquire about who the crew chiefs were for the subcontractors on the other jobs.

Having vetted the available superintendents and subcontractors, it then becomes possible in the negotiation of the general contract to designate a particular project superintendent and particular subcontractors whom the general contractor must utilize for the performance of the work.  A provision could be added to the effect that if the general contractor due to exigencies outside of its control is required to replace that superintendent or certain subcontractors, the general contractor be obligated to find suitable replacements subject to the approval of the owner.  The result - - the owner has greater assurance that the best team the general contractor has to offer shows up to perform their job.

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BE SAFE:   National Lead Poisoning Prevention Week October 23-29, 2011

Since April 22, 2010, federal law requires that all contractors who perform renovation on buildings built prior to 1978 must be certified in lead safe work practices. The law was passed to protect homeowners, their families and the contractors themselves from the potentially toxic lead dust.

In order to obtain certification the contractors must attend a certified training course on the proper practices for safely removing and disposing of lead based paint. Also, before starting a project the contractors are required to provide disclosures on the dangers of lead based paint to the property owners.

Known as the Lead Pre-1978 Renovation Rule, the disclosure is intended to improve consumer and contractor awareness of the need for lead safe work practices. The document developed by the EPA that must be provided is titled "Protect Your Family From Lead In Your Home." The document and a multitude of other information on lead based paints is available by calling 1-800-424-LEAD or log onto www.epa.gov/lead.

The Environmental Protection Agency has the authority to allow states to administer their own program in lieu of the federal regulations however Florida has not been authorized as of yet. This means that Florida residents must look to the federal guidelines for information on pre-1978 renovations.

Although in theory because of the cost of the training and additional protective equipment, renovations may be more expensive, it is important because of the potential of personal injury that property owners only hire certified contractors for these types of renovations. In addition these contractors, if they do not follow the law could also face fines up to $37,500.00 per infraction per day.

To find a list of certified renovation contractors contact the EPA at 1-800-424-LEAD or log onto www.epa.gov/lead.

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Its best with commercial loans to know your lender and foster a strong working relationship so that when challenges arise there is the opportunity to work towards a solution which satisfies both lender and borrower concerns. Unfortunately, with certain big banks, often borrower concerns fall on deaf ears.

Last year our firm handled a case where one of the nation's largest banks declared a default on a loan to a retirement facility which in the eleven years of the loan the facility had never missed a payment on and where the loan to value on the real estate was less than 25%. The facility was forced to re-finance in haste into a loan with inferior terms. Our firm represented the facility in seeking damages from the bank.

Knowing that the loan documents were skewed in the bank's favor (no surprise there) and the big banks had successfully lobbied an exemption from Florida's Unfair and Deceptive Practices Act, we had to come up with a novel theory to confront the bank's actions. Fortunately, under the common law, every contract, including a loan agreement, contains an implied covenant of good faith and fair dealing. This covenant is especially applicable where one side through greater market leverage is able to require a contract containing numerous "gotcha clauses" in its favor.

In the case of this loan to the retirement facility, the bank utilized a "gotcha clause" to declare a default. We convinced the arbitrator that the bank's use of this clause as a justification to call the loan without providing the facility with sufficient opportunity to cure constituted a breach of the bank's covenant of good faith and fair dealing.

Result: The bank had to write a big check to the facility and the individual guarantors, which check included the facility's attorney's fees.

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On July 1, 2011, a new law took effect in regards to persons who provide mold related services.

The law provides a distinction between persons who provide mold assessment services and mold remediation services.

With the intent to protect the safety and welfare of the public the legislature has determined that persons who provide these services must be regulated by the state.

It is now law, with limited exceptions, that a person may not perform a mold assessment or mold remediation unless the person has among other things received substantial training in water, mold and respiratory protection, possess good moral character and pay a fee.

Because of the potential for a conflict of interest between these two types of services the law now provides several restrictions on providing these types of services. As an example the law states that persons who provide mold assessment services may not within a period of 12 months perform or offer to perform mold remediation on the same structure. The law further states that mold assessors may not accept or offer compensation to or from a mold remediator for the referral of business.

These restrictions are also provided in the reverse such that a mold remediator may not offer or perform assessment services on a property which they have provided remediation services within the last 12 months.  Further, a mold remediator may not offer or accept compensation or reward from a mold assessor for the referral of business.

As far as advertising, a person providing these services may not use the title "certified, registered, licensed or professional assessor or remediator" without complying with the new restrictions on qualification.

Persons who violate provisions of this law potentially face criminal charges for each violation up to and including a third degree felony.

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Tannenbaum Scro, a law firm with offices in Sarasota and Clearwater, announces that Mark C. Hanewich and Liz Alpert have joined the firm as partners.  The firm will now be known as TANNENBAUM SCRO HANEWICH & ALPERT, Attorneys at Law.

Mark Hanewich practiced as a real estate lawyer in Massachusetts and Rhode Island for 16 years prior to moving to Florida in 2000, where he has since concentrated his practice in the areas of residential and commercial real estate, lending and corporate law.  He is a member of the Florida, Massachusetts and Rhode Island Bars.  

Liz Alpert concentrates her practice in the areas of marital and family law. She sits on the Human Relations Board of the City of Sarasota. Before moving to Sarasota, she was a long-time resident of Tampa, where she ran for the State House of Representatives, as well as the Tampa City Council.

“These practices will be a great complement to the firm’s active construction, commercial, real estate, and personal injury litigation practices,” states firm managing partner and board-certified construction lawyer Alan Tannenbaum.  Adds firm partner Salvatore Scro: “I personally have more than 20 years of experience practicing both real estate and marital and family law.   Much of my time with the firm is also spent handling complex construction, commercial, and personal injury matters, so I look forward to supporting Mark and Liz as they expand the real estate, lending, corporate, and marital and family law practices of the firm.”

The firm's phone number is 888-883-9441.  The firm's website can be accessed at www.TannenbaumScro.com.

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