Real Estate Law

Early Action on Your Construction Contract is Key

I bang the drum of early and frequent consultation with one of us construction attorneys on a regular basis here at Musings and in other places of the “blawgosphere.”

Why do I do this? Doesn’t such consultation help to avoid the problems that seem to make those of us in the construction law business happy? Aren’t all of us lawyers just out to complicate things and throw a monkey wrench into construction projects? In short, why would I constantly advise on ways to avoid exactly the construction litigation that you would think would make me the most money?

The answer? Because I think that the best way to keep my construction industry clients happy and profitable is to help them at least plan and contract in a way that avoids the legal pitfalls (if not the on the job glitches) that can cause unanticipated drain on the finances of a business. I also think that when working in partnership with my clients, I as a construction attorney can actually be a help rather than a hindrance. Frankly, while I can and do litigate on a regular basis, I would much rather help contractors and subcontractors stay profitable (read “out of trouble”) than spend my time and their money in court.

One way to help is for me to get involved early in the construction process. As my good friend Brett Marston recently posted, careful review of your contracts prior to signing can help you avoid certain issues down the road. Among those key items that Brett brings up is waiver of mechanic’s lien rights. A consistent theme I hear from Virginia construction folks is that they don’t realize that in Virginia (unlike many states), mechanic’s lien rights are waivable by contract. Without an early review or consultation with an attorney, you, as a subcontractor, could unknowingly waive this powerful and key right and be left without a right to a lien should something go wrong in the payment stream.

This is just one of many contractual and legal issues that you could avoid simply by taking an early and detailed look at your construction contract, preferably with the help of an experienced attorney and counselor at law.

As always, I welcome your comments. Please subscribe to keep up with this and other Construction Law Musings.

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