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Mechanic’s Liens In Kansas Construction

August 28, 2018 No Comments

Used With Care, Liens Are A Highly Effective Way To Get Paid Construction can be one of the most complex and challenging industries in business. There are innumerable variables, affected and compounded by unpredictable events, all of which affect your bottom line. But, if there’s one variable you need to minimize it is “No Pay.” Mechanic’s liens are a very effective tool in your legal toolbox to help you minimize the “No Pay” problem. There are few remedies more powerful in construction than a mechanic’s lien. A mechanic’s lien allows you to file in state court a claim against a property, for payment for the services you made upon that property. A mechanic’s lien is leverage because it clouds the title to the property, and title insurance companies, lenders and landlords alike all despise clouds on their property’s title. Title insurance will not insure a title to property encumbered by a lien, and lenders and landlords almost always have anti-lien provisions in their loans and leases that require the borrower and tenant to remove the lien. Then, if the leverage doesn’t result in getting paid, then you can file a lawsuit to foreclose on the lien, and to get paid from the net proceeds of the sale of the property, after all senior encumbrances and liens are satisfied (e.g. recorded mortgages filed before the lien attaches to the property). But, let’s look at what it takes to get to a foreclosure action. In Kansas, there are specific requirements that must be fulfilled. It’s crucial for you to file your mechanic’s lien in strict compliance with every procedural requirement, as well as per the case law that has been developed over many years. If the lien does not strictly comply with the statute and case law requirements, it will be found to be “fatally defective,” and of no effect. Each state can vary widely in their procedural requirements. Don’t assume one state is like another, and always check with a well qualified construction lawyer that regularly practices in the state where the property is located. Mechanic’s Liens In Kansas Q&A How long do I have to file a lien? — Contractors have four months from the last day that labor and/or materials were provided. Subcontractors have three months. If timely filed, an extension is available extending the deadlines to five months from the last day worked. The extensions must be filed within four months from the last day worked for a prime/general contractor, and within three months from the last day worked for subcontractor. How long is the lien effective? — You have one year to take foreclosure action from filing. If an action is not filed within that year, the lien becomes ineffective and unenforceable as a matter of law. Does Kansas require a notice before commencing work, and after its complete? — No. Does Kansas require, or does it provide for notice to property owners? — Only subcontractors who perform work on residential property occupied by the owner must provide the property owner a form warning of a possible lien. Otherwise, there are no notice requirements before a lien can be filed. As stated above, but worthy of repeating here, there are strict requirements to comply with Kansas lien laws, and there’s a lot at stake. Kansas courts strictly interpret and apply the lien statutes, and it is an area of law where a novice can easily error and file a defective, unenforceable lien. Your specific situation should be reviewed by a qualified construction attorney before your lien is filed. After all, you deserve to be paid.

It’s That Time of Year: Back to School Safety Tips

August 28, 2018 No Comments

Summer is coming to a close. Kids will soon be back in school and Fall is around the corner! During this time of year, it’s a good idea to remind ourselves and our kids about back to school safety. Here are a few reminders to ensure that you have a happy and safe school year. Traffic Safety When school begins, there are many things that change. There will be a lot of new drivers on the road, driving themselves to school. There are also a lot more kids on the roads walking and riding their bikes. It is a time to be on high alert. Though you have heard it before it bears repeating, do not text or look at your phone while driving. You only have to take your eyes of the road for a moment to get into an accident or hit a pedestrian. Walking More kids and parents will be out walking during certain times of the day, going to and from school. If there are a group of children from your neighborhood, suggest they all walk as a group with one parent supervising. This is like a carpool arrangement, but on foot. Be sure to use crosswalks whenever possible. Texting while walking, by the way, is dangerous, too! Yes, it’s a thing. There are countless serious accidents that have occurred because someone was distracted and walked in front of a car. Cell phones have their place, just not while you are out and about. School Buses The National Highway Traffic Safety Administration (NHTSA) reports that school buses are considered the safest way for a child to get to school. They do however, have their own dangers. Statistics report than an average of 8 children a year are killed getting on and off the bus. Sadly, another 4 are killed in bus vs car accidents. Be sure to remind your children to stand back from the curb before the bus stops. After getting off the bus, children should only cross when the bus has it’s warning lights on. If you are driving near a bus, give the bus plenty of room, being aware that it will make frequent stops. Lastly, always stop behind a school bus when the lights are flashing. Biking to School Bikes can be a safe way to get to school. However, remind your child that they need to follow the regular rules of the road. This includes using hand signals and making a complete stop at stop signs and traffic lights. Be sure they wear a helmet and have bright, reflective clothing on so they can be seen by other drivers. We hope that you all have a safe and happy school year. Should an accident occur, or if you have a legal issue that you need to discuss. Please come in and speak to us.

Should You Include An Arbitration Clause In Your Construction Contracts?

August 1, 2018 No Comments

It’s time to finalize the contract with your client. Do you include an arbitration clause? That might, or might not be, a good idea. Before you decide, consider the advantages and disadvantages. Don’t assume arbitration is the best way to minimize legal fees. Does Arbitration Really Cost Less? The short answer – it depends. A plaintiff filing fee can cost as little as $150, and defendant’s fee even less, if any at all. But, when it comes to commercial arbitration, the filing fee can hinge entirely on the value of the claim. The higher the claim, the higher the filing fee for the administration of the arbitration. Compare that to state or federal courts, where filing a claim is usually a fixed fee. An arbitration filing fee can actually be much higher, dramatically higher in fact, should the claim involve substantial monetary damages. Commercial arbitration requires at least one arbitrator, and sometimes a panel of arbitrators. Hourly rates for arbitrators can be as high as $500 per hour, regardless whether the arbitrator is conducting pre-hearing meetings, reviewing documents, or conducting the arbitration hearing. It varies by contract terms, but often both parties are responsible to pay these fees. Not so with court proceedings – judges and juries are not compensated for pretrial or courtroom time. Knowledge & Expertise While an arbitrator has been trained in construction law, you have no assurance that he or she would be more knowledgeable than a judge. And, while a jury is comprised of laymen who have to weigh a case on its merits, a panel of arbitrators could decide a case with equally confusing or unreasonable outcomes. Discovery – Good News & Bad News Arbitration purposefully limits the discovery phase. After all, the whole reason for arbitration is to reduce legal expenses and speed up the process of getting to a ruling. Court proceedings allow a much broader exploration of discovery, which allow both sides to gather evidence. Unfortunately, this phase can be like trench warfare, where both sides try to outspend, or outlast the other. Costs dramatically escalate. That said, while arbitration almost always puts tight limits on discovery, an arbitrator still has the authority to allow more. This depends on the case and its monetary claims. If the arbitrator allows a more expansive discovery phase, then costs will escalate. Save Time Arbitration can and should be faster than the court process. State courts are often backlogged for up to a year before a case goes to trial, and in federal court it may be two years. By contrast, an arbitration proceeding can be resolved in less than a year. What Happens After An Arbitration Judgment? Once a judgment is obtained, the parties are allowed to file the judgment with the state court to execute upon it. The court is obliged to confirm the arbitration award, and there are only very limited means to appeal an arbitration decision. The courts give great deference to the arbitrator, and unless the arbitrator grossly applied facts or the law, the arbitration decision will not be overturned. One clear advantage to a court proceeding over an arbitration proceeding is the court’s judgment is appealable. Summary There are compelling advantages to include an arbitration clause in construction contracts. If properly managed, the arbitration process can be advantageous in that the arbitrator may be someone with a background in construction, the timing of the case may be quicker, and discovery costs may be less. Note the use of the word “may” applies here, because all too often the case is not managed efficiently by the arbitrator, and in the end the costs to arbitrate may be as much, if not more than if the cse were tried in court. Obviously, one size does not fit all. Each contract needs careful analysis based on its unique context. It’s important to weigh the consequences. If it’s a complex, high value construction deal, you need to consult with counsel before finalizing it. Please contact us if you have questions. There’s a lot at stake. We look forward to assisting you.

Artificial Intelligence In The Construction Industry On The Verge of Transformation

July 22, 2018 No Comments

For a $10 trillion industry, technology remains a surprisingly small part of the construction business, especially when it comes to artificial intelligence (AI). Change is coming. According to a 2018 McKinsey & Company report, AI is gradually emerging in the construction industry with the possibility to upend the entire business. This is not just a solution in search of a problem. Because, it could dramatically help reduce cost and schedule overruns, lower job site injuries, and allow other entrants to pose significant challenges to established players. To be clear, AI isn’t going to show up as a one-size fits all solution in the near term. Adoption will take time. There are dozens of stakeholders that need to be part of an AI-based ecosystem. But, make no mistake, AI is coming to a construction firm near you. Already, parallel industries like manufacturing and transportation have begun to utilize AI. These industries – which have long-established relationships to construction – have discovered synergies and strengths by breaking down traditional barriers between each other. Today, they’re interacting more like ecosystems instead of separate silos. The construction industry will soon discover the same efficiencies. While the industry might be slow to adopt this model, the advantages are compelling enough to suggest that change is on the horizon. And, let’s not forget that well-established players are vulnerable to new entrants with radically different technologies and vision. Just look at the way Amazon grew from an online bookseller to the world’s largest retailer that now delivers groceries – and might soon move into the traditional pharmacy business. Where AI Could Be Applied In Construction – Planning and scheduling. – Predictive outcomes. – Supply chain optimization. – Robotics for prefab or modular construction. – Image recognition to improve safety. – Machine learning / deep learning algorithms could have a dramatic impact on improving quality control; claims management; maintaining talent; and maintaining a competitive edge in project bids by improving margins and cost analyses. ALICE Is Already Here Silicon Valley start-up, Alice Technologies, Inc. has created an AI-based assistant that focuses on tedious tasks like scheduling. Dubbed ALICE, it’s designed to alleviate the time-consuming number-crunching effort involved in project planning and management. Here’s how it works. A scheduler – along with subcontractors, architects, engineers, project managers – sets up the scope of the project with a rule set. It includes a range of variables like tasks, resources available, and calendars. Once all data and variables are established, ALICE creates scheduling scenarios within minutes – a task that has typically taken weeks. It also suggests the best scenarios and includes 4D and 3D models, Gantt charts and time-cost curves. Proof of ALICE’s effectiveness was demonstrated in a pilot project for Mortenson Construction. ALICE produced 22 strategies and cut the project schedule by 84 days. Other functions allow users to modify rule sets along the way in response to changes in the schedule, materials, and budget. For example, ALICE can suggest adding additional crews for a week or two and helping with crew utilization rates. Summary AI holds great promise for the construction industry. But, with the “new” comes disruption. Existing players could be upended by new, more nimble entrants with radically different approaches and technologies. And established players will have to adopt – and adapt – just to remain competitors in the game. Naturally, the legal implications of AI for the construction industry are just beginning. The legal field is closely watching these developments while developing legal strategies for its construction clients.

4 Reasons to Give Truckers Extra Space

July 19, 2018 No Comments

Whether you pass trucks on the highway during your daily commute or are going on a family road trip this summer, you should know that trucking crashes happen and they can result in serious injuries and even death. Driving around trucks is different than driving around other cars and we hope you’ll keep these tips in mind to avoid a crash. Give truckers more room than you would for a regular car. There are a few reasons for this. 1. Tire blowouts. Ever noticed some chunks of rubber on the highway? That’s from a truck’s tire blow out – and these can happen with little warning. Not only do you not want that rubber flying in your face, a blowout can cause a truck to begin swerving unexpectedly. 2. Wind. Some think that trucks, because they are so heavy, are unaffected by the wind around us. Ever feel the wind blow your car around a little bit? It happens to trucks too and may even be more exaggerated. Because trucks are larger vehicles, the wind can create a “sail” like effect which can be difficult for truck drivers to control – this could result in a truck drifting over into your lane. 3. Blind spots. Every car has blind spots. But, the number and size of blind spots in an eighteen-wheeler or other large truck are huge. Avoid truck blind spots. If you can’t see the truck driver in one of the truck driver’s mirrors, the truck driver probably can’t see you. If passing, pass quickly and on the left side of the truck. And remember, there may even be some blind spots in the front of a tractor trailer. 4. Wide turns. Because of their size, trucks make wide turns. Combine this with their blind spots and if you fail to give the truck enough space, you could unexpectedly get caught in a blind spot during a trucker’s turn. We never want any of those 4 things to happen to you and your family. So, remember, always give truckers extra space and have an escape route. If traffic requires you to drive in what may be a trucker’s blind spot, have a plan in case the truck makes a sudden movement in your direction. Or, slow down to get out of the blind spot. Know someone going on a trip soon? Share this with them to help them keep their family safe as well.

3 Ways Attorney Stan Bachman’s Unique Approach to Construction Law Helps His Clients

June 4, 2018 No Comments

If you’ve worked with Stan before, you probably know that his background is actually in construction – which is a perfect fit, considering he’s a construction lawyer. His 25 years of experience as a general contractor and business owner brings a unique perspective for a construction lawyer. Not only does he understand the legal aspects, he also fully understands the practical aspects of a construction business. He combines those to create realistic, valuable solutions for his clients’ needs. In Stan’s construction work, he experienced and navigated labor shortages, bad estimates, bad subcontractors, litigation claims and both large and small contracts. He learned the business side of things as a business owner. Stan has learned how to bring a calmness to situations where there tend to be a lot of tempers. His practical construction, business and legal experience all combine to create a unique, experienced approach to construction law issues. Stan helps his clients in 3 main ways: Prevention, Triage and Remediation. Many of Stan’s clients come to him before they have a legal issue. Stan helps them understand and obtain insurance for defects and actions, insurance for property and bodily injury and negligence. Stan wants to help construction firms plan for potential issues to heed off massive cost to the company; when issues do arise, his clients are prepared for them and face minimal loss. Stan also helps clients in what he refers to as the Triage stage – meaning a client is going through an urgent situation and needs immediate help to mitigate potential damages. He helps clients make quick decisions to mitigate damages when litigation is on the horizon or has already started. Stan is always looking out for both the short and long-term consequences and goals for the firm. In some cases, the whole matter cannot be resolved in the triage case and the firm is still facing long-term exposure. In these cases, Stan takes a remedial approach – what can we do to fix the problem? This may involve negotiations, it may involve litigation. Stan sticks with his clients through the long-haul to ensure the best outcome for the firm. Interested in how we could help your construction firm? Give us a call today.