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5 Aspects of Construction Contracts that Are Often Overlooked

There are a few aspects of construction contracts that are often overlooked. Without a properly drafted contract drafted by an experienced construction attorney, owners can find themselves unprotected in situations that can result in extra cost and time. A carefully drafted contract will help owners avoid common problems that can derail a project.

What Should Be Included?

There are six commonly overlooked aspects of construction contracts that, if included by a construction attorney, can protect owners from unexpected delays and costs:

  • Project Schedule
  • Change to the Scope of Work
  • Notice Provisions
  • Lien Claims
  • Force Majeure Clauses
  • Prevailing Party 

Project Schedule

Including a detailed project schedule provides clarity and security for owners. Construction contracts should include a baseline project schedule that provides the different phases of construction and their timelines. They should also include provisions for providing the owner with progress updates and a schedule recovery plan in the case of delays. 

Change to the Scope of Work

Construction contracts should include a way to resolve disputes that arise over change orders. A contract can include a provision that the contractor continues work when a dispute arises, resolving issues over price or timeline at a later date. Alternatively, a contract can provide for a fast-tracked dispute resolution to resolve any issues over change orders.  

Notice Provisions

Notice provisions are important to ensure that owners stay informed of potential delays. The notice provision in a construction contract should specify that contractors should provide written notice of any problems that arise. It should further specify whether electronic notice is sufficient and in what circumstances special delivery, such as delivery by certified mail, is required.

Lien Claims

Construction contracts should include provisions that specify the steps to be taken when a lien is filed. The contract can include language that requires the contractor immediately take steps to satisfy lien claims by any subcontractors. The contract can also require that the contractor indemnify the owner for any proceedings or lien claims if the contractor fails to take the necessary steps to resolve the claim after being notified by the owner.

Force Majeure Clauses

Due to the COVID-19 pandemic, detailed Force Majeure clauses should be included in construction contracts. Force Majeure clauses typically excuse a party from completing its obligations if an unforeseeable event prevents its performance. The Force Majeure clause should specify that written notice that the clause has been triggered is required. The delay must end once the unexpected event ends. 

Prevailing Party

It is important that if a legal dispute does arise, there is a legal mechanism to recover attorneys’ fees and costs.  The easiest way to provide for this is to include a prevailing party clause in the contract that allows a prevailing party in an action (either a lawsuit or arbitration) to recover reasonable attorneys’ fees and costs.  Without such a provision, a party to a contract could end up with no legal ability to recover attorneys’ fees.

It is also important to consult with an attorney to understand the legal implications of other contract provisions, such as arbitration provisions (waiving the right to a jury trial) and waiver of warranties.  It is important not to sign a contract unless all terms are understood.  A construction contract attorney can assist with explaining all possible implications.  

What Our Clients Say

My family and I are thankful to Maddox, Segerblom and Canepa for their assistance during a three year case regarding construction defects to our home. We are truly appreciative of their knowledge, determination and assistance during this process. They were always courteous, and available to answer any and all of our concerns and questions. Thank you for the wonderful resolution. Many thanks to you and your staff.

Frances Castelli

We used Maddox, Segerblom & Canepa to represent us in a legal suit re problems in construction on new properties that we purchased from a developer.

We were very pleased with the representation provided by this law firm. They were fully communicative, responsive to our questions and were very knowledgeable about the issues that required resolution. Even after we reached a resolution, they have been responsive in making sure to point us in the right direction for help with repairs that are required.

We would recommend them to others with similar issues that require legal help.

Atam & Margo Lalchandani

Maddox, Segerblom & Canepa did a FANTASTIC job in our construction defects case. I interacted with several people from their office throughout our 2 year litigation. Their staff is friendly, knowledgeable and always prompt about getting back to you when you have questions/comments/concerns. I especially enjoyed working with Darcy, Ardea, Eva, and Sandra. Being part of a lawsuit is no fun for anyone, but if you have to be a part of one, I can’t say enough positive things about this firm!

Victoria Fox

The law firm of Maddox, Segerblom, and Canepa were amazing to work with. They were thorough and always available for any questions we had. We worked a lot with Sandy who was always professional, friendly, always on time for appointments and just a great person to represent this firm. We have never been involved in a law suit before and they made it comfortable for us. We appreciate the hard work the lawyers and people who work for the firm did and would recommend them.

Becky Loudenburg
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