Tag Archives: NC construction law

Barnstorming Tour on Revisions to North Carolina’s Lien and Bond Laws Kicks Off Tomorrow In Durham

I’m excited to be one of five North Carolina lawyers participating in a series of seminars sponsored by CarolinasAGC aimed at helping the construction industry understand the significant lien and bond revisions passed by the General Assembly and signed into law by Governor Perdue earlier this summer.

Over the coming weeks, CAGC is sponsoring five such seminars in Durham, Wilmington, Greensboro, Charlotte and Asheville.  CAGC’s website describes each seminar as follows:

This two hour seminar will cover the major, recently enacted revisions to North Carolina’s lien and public bond law statutes.  House Bill 1052 and Senate Bill 42 were signed into law this July, and will take effect respectively in January and April 2013.  The new laws substantially modify the steps that all parties will have to take to protect their interests — regardless of whether they are an owner, buyer, contractor or sub/supplier. In particular, the new laws impose significant new notice requirements for both public and private work.  This seminar will be taught by attorneys that were intimately involved in passing the legislation and will cover in detail what the changes are and what you’ll need to do to protect your interests starting in 2013.  Attendees will receive a written summary of the lien laws as amended and a copy of the Power Point
presentation presented and have ample opportunity to ask questions from the presenting attorneys.

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Filed under Events, Lien Law, Payment Bonds, State law, policy & news, Surety Law

The Ties That Bind, and Those That Don’t: Subcontracts v. Sub-bids

I frequently receive phone calls from general contractors curious to know what their legal rights and obligations are with respect to subcontractors before a subcontract agreement is actually reached.  Invariably, these calls entail answering one of two questions:(1)  Can I sue a subcontractor who wants to back out of its sub-bid or estimate?  Or,

(2)  Am I obligated to use a subcontractor upon whose sub-bid or estimate I based my prime contract price?

Generally speaking, the answer to both questions is “No.”  That’s partially good news for subs, and partially good news for GC’s.  Here’s why.

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Filed under NC case law, Subcontractors

“Who Are You?” To Preserve Lien Rights Against Owners, Get the Right Answer to that Question!

Image courtesy Sam Killermann / samuelkillermann.com. Lyrics from “Who Are You” by P. Townshend (c) 1978.

I’m psyched to present another guest blogger this week: Lewis & Roberts construction & surety law associate extraordinaire, Jessica Bowers.  It’s been my distinct pleasure to work with Jessica since she joined L&R in October 2010.  Jess has represented owners, developers, GC’s and subs, and her practice has seen an increasing emphasis on serving the needs of surety companies.  A member of the State bar since 2005, Jess was a recipient of the bar’s Pro Bono Public Service Award that year.  

If you’re like me, you might find yourself softly singing the catchy chorus from the Who’s “Who Are You” as you consider the North Carolina Court of Appeals’ June 5, 2012 decision in Young & McQueen Grading Company, Inc. v. Mar-Comm & Assocs., Inc. et al.

The case involved a good deal of confusion regarding the correct identity of the owner of a construction project, confusion that complicated the contractor’s assertion of its mechanic’s lien rights against the owner’s property.

Rest easy, the contractor ended up prevailing and holding on to its lien rights.  But it sure wasn’t easy!  The decision reminds us how critical it is at the beginning of a project to determine the correct identity of the owner of the improvement by obtaining an accurate answer to one simple question:

Who are you?

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Filed under Feature story, Lien Law, NC case law

Title Insurers Seek Profound, Immediate Changes to N.C. Mechanic’s Lien Law

My May 23 post about proposed revisions to North Carolina’s lien laws mentioned that protection against “hidden liens” had been omitted from earlier versions of the bill, due to a concern that the issue required additional study prior to legislative action.

The title insurance industry, however, has other ideas.

In recent weeks, title insurers have ratcheted up the pressure for the issue to be addressed immediately, prior to the General Assembly’s adjournment of its “short session” at the end of this month.   The legislation they are pursuing would make profound changes to the manner in which all potential lien claimants — architects, engineers, general contractors, subcontractors and suppliers included — would need to preserve their lien rights, before a claim of lien is ever filed.

This post provides background on the so-called “hidden lien problem,” summarizes the title insurers’ current legislative efforts, and identifies potential problems with their draft legislation.

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Filed under Feature story, Lien Law, State law, policy & news

4th Circuit, Flawed NEPA Review Process Cast Doubt On the Future of the Monroe Connector Bypass

Image courtesy FreeFoto.com

Remember the headline to my March 12, 2012 blog post about the Monroe Connector Bypass (or just the Monroe Bypass, for short)?

It suggested that the legal saga surrounding the proposed $725 million highway construction project was nearing “the end of the road.”

On second thought, not so much.

The road has taken an unexpectedly sharp turn, and there’s no telling how long the project may now be delayed.  Why? Because according to the Fourth Circuit Court of Appeals (“4th Circuit”) in its May 3, 2012 decision in N.C. Wildlife Federation v. N.C. Department of Transportation, the North Carolina Department of Transportation (“NCDOT”) and the Federal Highway Administration (“FHA”) (collectively, the “Agencies”) failed to conduct a clear, transparent environmental review process that permitted meaningful public comment under applicable principles of federal environmental law.

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Filed under Feature story, Federal case law, Federal law, policy & news, Local law, policy & news, Projects of Interest, State law, policy & news

Case Law Spotlight: COA Limits Reach of Sedimentation Pollution Control Act in 2-1 Decision

The Court of Appeals (“COA”) held last week that a general contractor can not be held liable under North Carolina’s Sedimentation Pollution Control Act (the “SPCA” or the “Act”) for land-disturbing activities that resulted in an offsite deposit of silt, mud, debris and water on an adjacent landowner’s golf course.  The 2-1 split decision limits the reach of the SPCA, codified at N.C. Gen. Stat. §  113A-50 et seq., to offsite sediment disposal into water; according to the COA, disposal onto land is not covered by the Act.

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Filed under Environmental Issues, Feature story, NC case law

Finally Extinct: Mammoth & Harrelson Decisions Disavowed by the Same Court That Issued Them

Back in the Summer of 2009, the entire North Carolina construction industry, particularly us construction lawyers, were shocked by a series of decisions handed down by the U.S. Bankruptcy Court for the Eastern District of North Carolina that essentially prevented subcontractors and suppliers from serving claims of liens upon funds up the contractual chain once an entity higher on that chain had filed for bankruptcy protection.  Nearly three years later, and in a surprise move that should come as welcome news to a wide swath of the contracting community (and particularly to subs and suppliers), the same court reversed course last Wednesday, and is once again permitting notices of claims of liens upon funds to be served despite the automatic stay provisions of federal bankruptcy law.

I’ll have more analysis in the days ahead.  In the interim, rest assured that the In re Mammoth Grading and the In re Harrelson Utilities decisions are for all intents and purposes no more.  To read the Order of Judge Randy Doub reversing course, click here.

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Filed under Federal case law, Lien Law