PRACTICE AREAS

CALL US

For a free consultation

408-727-4111

Construction Law

Mr. McCarthy consults with contractors, subcontractors, material suppliers and developers on all aspects of the construction process and works to develop long-term relationships with his clients.

    Often, with a brief consultation Mr. McCarthy will advise a client in ways that save time, money and avoid litigation. He assists clients in negotiating, drafting, and reviewing construction agreements and, when necessary, preparing mechanic's liens, stop payments notices, and payment bond claims.

    Should litigation prove unavoidable, the law firm represents clients in state and federal courts and in mediations, administrative hearings, and arbitrations.

    The law firm handles small and large matters and gives every case the same high level of service

Construction Claims

When a construction project is not completed on time, construction claims may arise. The owner usually alleges that the responsibility for the delay rests solely with the prime contractor. As a result, the prime contractor owes liquidated damages to the owner for each day the project was extended past the scheduled completion date.

    Analyzing the causes of delays can be a very complex process. The first step is to determine which party or parties, contributed to the delay. This is where Mr. McCarthy's construction background comes into play.

    Delays can be attributed to unforeseen and differing site conditions causing extensive changes to the scope of work, and overall schedule disruption. Excessive changes have a compounding effect on the completion of the project. This may be compensable to the contractor to offset productivity loss, extended job costs, and overhead costs.

    Defective and/or deficient project plans and specifications will cause the contractors involved to submit numerous requests for information (RFIs) to the architect, engineers and project managers. The turnaround time for RFIs, and waiting on subsequent change orders, will extend completion of the project. The contractor may be entitled to extended job costs and office overhead costs.

    Contractors who place extra people on the job and work overtime in order to meet a schedule, when not at fault, may be entitled to extra compensation for acceleration.

    There are countless reasons for construction claims and the above examples barely scratch the surface.

    Mr. McCarthy has assisted clients with construction claims against numerous public agencies including the City of Oakland, University of California, Santa Cruz County, and several school districts.

Mechanic's Lien Foreclosure

You must foreclose (file a lawsuit) and file a notice of pendency (lawyer talk for screwing up the title to the property) to perfect the lien within ninety days of filing, or the lien no longer has any force or effect.

A mechanic's lien is one of the few really powerful tools a contractor holds in his or her legal toolbox and must, therefore, be handled effectively. A proper foreclosure of a mechanic's lien can force an owner to pay you or risk having his or her property sold at auction. Without this tool, it could take many years and enormous expense to get paid.

The effective handling of the foreclosure is where Mr. McCarthy's background as both a contractor and attorney will benefit you. The law firm's experience and expertise in construction law can save you time and money.

CSLB Disciplinary Action

The Contractors State License Board (CSLB) is a part of the Department of Consumer Affairs. The CSLB is not a contractor's friend, and almost always sides with the homeowner.

    When a homeowner files a complaint with the CSLB, the Board investigates the complaint. Assuming the complaint has merit, the Board decides if the complaint should be pursued as either a citation or an accusation.

    Citations may contain civil penalties of up to $5,000 and/or orders of correction requiring the contractor to make repairs to the project or pay back money to the owner.

    The CSLB will try to downplay the impact of a citation. A CSLB representative once referred to a citation as a traffic ticket; however, the CSLB lists citations on contractors' licenses at their website. This can make it difficult for a contractor to get work when a prospective client checks the contractor's license and sees the citations.

    If the CSLB pursues the complaint as a charge, or accusation, it could lead to suspension or revocation of the contractor's license. In this case, the state Attorney General would represent the CSLB.

    If the CSLB files either a citation or accusation against you, seek legal advice immediately. Mr. McCarthy has successfully defended many contractors charged with citations and accusations by the CSLB.

Construction Litigation

If litigation is necessary, Mr. McCarthy's extensive construction background is a great advantage when assessing a client's case for trial or arbitration. Clients do not have to spend time and money educating Mr. McCarthy on the construction aspects of their case.

Mr. McCarthy has extensive litigation experience having tried cases in Alameda, Contra Costa, Monterey, San Mateo, Santa Clara and Santa Cruz Counties. Mr. McCarthy has arbitrated numerous cases with the American Arbitration Association and Judicial Arbitration Mediation Services (JAMS).

Mr. McCarthy has served as an arbitrator with Arbitration and Mediation International and arbitrated cases between owners and contractors for the Contractors State License Board.

Real Estate Transactions

Mr. McCarthy has been a licensed real estate broker in California since 1995. Prior to that, he was licensed in Missouri for seventeen years.

Mr. McCarthy performs real estate transactional work for builders, developers and real estate professionals. He assists throughout the entire transaction, from negotiating the purchase agreement to completing the real estate closing.

Real Estate Litigation

Mr. McCarthy has handled real estate disputes involving the purchase and sale of all types of property, disputes between partners and disputes with tenants.

He has represented property owners in lot line disputes, easements, zoning and permitting issues and environmental matters.

Business Incorporation

If you are currently doing business as a sole proprietorship or partnership, I urge you to consider incorporating. The two most compelling reasons to incorporate are to protect your personal assets from the debts of your business and to save money in taxes.

    A corporation offers limited liability protection for its owners (the shareholders). This means that the shareholders are typically not personally responsible for the debts and liabilities of the business.

    You and your family need not be personally subjected to losses arising from your business misfortunes. Sometimes unforeseen business problems arise. You may be working on a large project and, for whatever reason, you do not get paid and you are unable to pay your suppliers and sub contractors and your suppliers and sub contractors sue you. With a corporation, you and your family can have confidence in the security of your personal assets.

    A corporation with a net income of $100,000 per year can save $4,000 to $6,000 annually in self employment taxes, when compared to a sole proprietor. The more profit you make the more money you save in taxes.

    If you decide to incorporate, you will need the corporation to be licensed with the Contractors State License Board. There are two ways to accomplish this. You may transfer your existing license to the corporation or obtain a new license. We can advise and assist you in this process.

    Our law firm can incorporate you almost immediately and work with your tax professional to create a seamless transition from a sole proprietorship or partnership to a corporation.

LLC Formation

A Limited Liability Company (LLC) is a legal business entity registered with the Secretary of State. An LLC is treated as a partnership for income tax purposes and a corporation for liability purposes. A contractor does not normally use LLC as a business entity. LLCs are typically used in holding real estate and in speculative real estate investing. Neither United States Citizenship nor California residency is required to form an LLC.