Articles Posted in REPRESENTATION FOR CONSTRUCTION CONTRACTORS, BUILDERS, AND SUB-CONTRACTORS

As an Atlanta Construction Lawyer, I have worked with clients who have taken their Georgia construction arbitration, litigation, and disputes to the court system for resolution, and others who have gone through the process of arbitration. Many times, a construction contract specifically states that all disputes must be resolved through arbitration, yet unless contractually mandated, arbitration is often overlooked. It is important to note that while both methods have their advantages, arbitration is often the fastest and can be very cost effective.

In Georgia it can take a minimum of a year for a case to go to trial, while the date of the final arbitration hearing can be set much sooner. Disputes are often resolved just a few months after the arbitration process is initiated. The disadvantage to arbitration is that the parties named in the dispute will pay for the time of an arbitrator. Arbitrators belong to arbitration associations that are usually private businesses, and fees for an arbitrator can cost several hundred dollars per hour. The court system, on the other hand, is funded by tax revenue and requires that the parties pay only filing fees.

Besides the timing advantage, another strong point to arbitration is that the parties can choose the arbitrator that will preside over the case. Arbitrators have been trained in specific technical areas of the law and can be picked with this in mind. Judges in court proceedings cannot be picked and, although they have a broad knowledge of the law, the judge assigned to a case may not possess proficiency in the area that the dispute covers. In complex construction disputes, having the option to choose a knowledgeable arbitrator will ensure that all parties are treated fairly under Georgia law.
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As an Atlanta Lawyer I have many clients that come to me to help them set up their businesses. Business entity formation, partnership and operating agreements, employment contracts and agreements, and employment law are all areas that I frequently work on for my clients. There are other times, though, when I do represent my business clients in court. In fact, according to a 1997 ruling by the Georgia Supreme Court, any Georgia business that is facing litigation must hire a licensed attorney to represent the company. Thus, if you do not have a business attorney and become involved in litigation, you must retain one. What is more, many of my Atlanta, Business Law Clients who work with our Atlanta Attorneys out of our Atlanta or Marietta Offices, often comment on how glad they are to have us nearby for piece of mind, prosperity, profitability, but most of all, that they know we are there for them when something inevitably and/ suddenly arises. I have engaged in dialogue with many of my clients, on more on a few occasions, to find out what makes having a good Local Atlanta, Georgia Business Attorney essentially, on call (or on staff). Virtually all of the answers I received were statements about how a prudent businessperson cannot just go out and find a business lawyer their business can work with and trust at the last minute . . . like a Starbucks.

It is always prudent to have Atlanta Attorneys on hand who is familiar with the company and can step in if litigation arises. But, there are other very good reasons to hire a business lawyer. The first is to properly set up the business. Deciding on which type of business entity will work for the business model is important before filing the proper paperwork. A knowledgeable Georgia Business Attorney is invaluable at this stage in business formation. Personal liability issues and tax consequences need to be considered and an experienced Atlanta, Georgia business lawyer will have good insight into which options are best for the business. An hour could be all that is required to complete an initial assessment of this step, but doing it right can help you avoid future financial and legal issues and serious tax problems or lost tax benefits.

Before hiring employees at the new company, it is essential to draft solid Georgia employment contracts. Job duties, payment terms, non-disclosure agreements and non-competition clauses all need to be considered. These documents will ensure that future litigation is kept to a minimum. This is especially true given the most recent proposed changed to The Georgia Constitution wherein Judges will be allowed to “blue pencil” in changes to employer-employee agreements to make them enforceable so long as they are no less favorable to the employee. (This subject matter is a whole new set of Articles/Blogs which will be coming soon. The fact is, the fallout from this legislation has yet to be seen).

An Atlanta, Georgia business attorney and Atlanta, Georgia employment attorney can also help with the hiring and firing or the process of “laying off” employees and can assist with setting up a system to measure employee performance. The guidelines and contracts that are established early on will help protect the company if any employee ever files a lawsuit against the company. Besides paying employees, many companies purchase services from suppliers, have leases on property (for example, vehicles and commercial real estate) and sign distribution or licensing agreements. A business attorney will safeguard your company against one-sided agreements by negotiating favorable terms for the company.
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As a construction lawyer in Atlanta and a homeowner, I am painfully aware that doing any form of modification to your home is not only time consuming but expensive as well. Stress builds up even more when things do not go according to plan, and Atlanta construction disputes brought by Georgia homeowners and Georgia construction contractors can ultimately lead to lawsuits and court time. To control the amount of construction cases going through the Georgia legal system, the Georgia Right to Repair Act became effective in 2004 to facilitate the settlement Georgia construction defect arbitration, disputes, lawsuits, litigation, and other construction issues outside of court. The following steps should be followed prior to filing a Georgia construction defect lawsuit or Georgia construction defect arbitration proceeding against a contractor in the State of Georgia.

Step 1: Homeowners Understanding Of The Georgia Right To Repair Act

Prior to beginning a home improvement project, Atlanta contractors are supposed to alert homeowners to what the Right to Repair Act states and what is required of both parties if the construction does not satisfy both pairings. As an Atlanta homeowner, it is necessary to do your research before you begin any home improvement project, so you are aware of your rights. Not following the Act correctly can result in a loss for you as well.

The news of the mildest winter on record in some time did not make me think of Kudzu bugs that were not killed off in severe frosts and cold weather. Instead, as an Atlanta construction lawyer, I thought that a mild winter could lead to a warmer than average spring, summer, and fall. The Atlanta construction attorney in me thought the formula: warm weather plus poor construction equals mold plus even slight dampness EQUALS MOLD!

In my Atlanta construction law firm, I handle mainly construction defects. However, the nature and type of defect vary. I have seen an increase in the number of cases that involve mold in newer homes. This seems to be more prevalent due to the boom in construction that occurred several years ago. Inevitably, with the passage of time problems are surfacing in these homes. In newer construction, mold is usually caused by a construction defect that falls within one of four categories. The first is design. Design defects occur when architects or engineers fail to follow code and design a sub-standard structure. Material defects are in the second category and involve the use of inferior or inappropriate building materials. Workmanship defects are in the third category and can include issues that arise from work by an inexperienced contractor or by a builder that knowingly cuts corners during construction. Subsurface defects are the fourth category and result from poor preparation of the soil on the property where the home is built.

Design, workmanship and material defects can be present in most areas of the home. Subsurface defects, on the other hand, mostly affect the building’s foundation. In the end, a compromised foundation can affect many parts of the home’s interior, such as bathroom tile surrounds, walls, ceilings and flooring. Issues in design, workmanship or material can cause defective tile work, but cracked tile may also be the result of a problem with the foundation or sub-floor. Regardless of the reason, broken tile and grout can allow moisture behind the tile face. This is when mold can gain a foothold. It is not always possible to visually confirm the presence of mold, so careful examination of all tile work is recommended, especially in bathrooms and areas with high water usage, such as kitchens and laundry rooms.

As a construction attorney in Georgia Georgia construction law firm, I recognize that for most people, buying a home is one of the biggest investments they will ever make, so when construction defects are found in a new home or renovation project, the issue can be devastating both financially, emotionally, psychologically, and more. In fact, stress and financial hardship are commonplace for the homeowner burdened with a defective dwelling. Homeowners often lose money on their investment since the property is worth less because of the defects. Our Atlanta construction attorneys refer to this situation as diminution in value. A home with construction defects not only generates less money when sold, but also is much more difficult to sell. Inevitably, homeowners will spend additional time and money to rectify construction issues or lose money on their investment when they sell their home.

Especially true today, it is not uncommon for builders and contractors to find ways to save money on construction projects. . . . . AND, they do so at your (the Homeowner’s expense and detriment) . . .

Although being cost-conscious does not always result in construction defects, it can increase the likelihood of such occurrences. Additionally, many builders and contractors customarily use subcontractors to complete building projects. Subcontractors are found on most job sites, but the builder or contractor often completes their work with minimal supervision so the quality of their work frequently goes unchecked. Moreover, even in cases where the subcontractor cuts corners to save time or money on a construction project, any resulting defects are still the legal responsibility of the builder or contractor. This is even true when the subcontractor knowingly and purposely hides defects from the builder or contractor. The subcontractor will still be legally responsible as well.

Georgia construction law very clearly states that the builder or contractor is directly accountable for any material defects in the construction project, regardless of who completes the work at the site. Because there is legal recourse for homeowners who discover construction defects, it is wise to consult an experienced Georgia real estate construction lawyer as soon as a problem arises to ensure that your interests are represented. And while many homebuyers who discover defects in the construction of their homes only seek the advice of a Georgia construction attorney once the defects are noticed and legal action is required, it is possible to protect yourself before construction begins by having a qualified real estate construction attorney draft a solid Georgia construction contract or Georgia purchase/sale agreement that will better protect your investment.
https://www.duncanadamslaw.com/lawyer-attorney-1509150.html


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As an Atlanta, Georgia construction lawyer I stay very busy when I am preparing for a Georgia construction arbitration proceeding/hearing. Sometimes I have little contact with the outside world news. However, some matters do keep my attention in this upcoming election, such as healthcare reform, the estate tax debate, the “Buffet Rule”, and withdrawal of troops from Afghanistan — ending a long war. These changes are taking place on a national level and to some extent, a local level. It is my opinion that if the Republicans control Congress after the 2012 elections and President Obama is not re-elected, then much of President Obama’s attempted changes will be put to rest. Thus, it is understandable we are living in uncertain times wherein we do not know what or will not change. What will not change is Georgia construction law and the need to proactively protect your property/real estate interests from unscrupulous Georgia builders, contractors, and sub-contractors. Georgia construction defects will continue at a high rate as Georgia builders, Georgia general contractors, Georgia sub-contractors, and other Georgia building professionals try to cut corners to make ends meet and extend their profits. This is being done at the expense and hardship of Georgia homebuyers and new home purchasers.

Fortunately, under Georgia Construction Law, there are options to hold your Georgia builders, general contractors, and sub-contractors liable for their negligence, shoddy construction, construction defects, and more. Please read on and into my article discussing some of the issues a homeowner, buyer, or purchaser of a new home should be aware of to protect their home investment interests. I offer you the following:

In my Atlanta, Georgia construction law firm, all of the Atlanta, Georgia construction lawyers are sure that current Georgia construction law and Georgia construction defect problems (especially in big metro areas like Atlanta) are here to stay. Every building over time will see the results of wear and tear, but knowing whether the problem is an easy fix or a major reconstruction project needs to be determined before you buy. After all, construction defects can reduce the value of your property significantly. These defects can range from design issues to faulty systems to failure to meet Georgia industry building standards. Remember – not all construction defects are created equal. What may look like a simply crack in the ceiling could actually turn out to be a major architectural default or foundational defect.

As a residential and commercial construction arbitration lawyer in Atlanta, Georgia, I can assure you that most persons entering into a Georgia construction contract do not think of worst case scenarios should any parties to the contract fail to perform their obligations according to Georgia construction contract law and construction industry standards.

• What is Georgia Construction arbitration; Is it binding? How does it work?

• What will happens if a contracting party fails to pay?


• What happens if the purchaser of contractor or builder services cannot be satisfied no matter what is done?

• What will happen if the contractor or builder neglects his duties?


• What do I do if I receive a Georgia “Right to Repair Act” Letter?

• Do I need to, and should I, send a Georgia “Right to Repair Act” Letter?

• What will happen if residential or commercial construction does not meet or exceed industry standards?

The questions and scenarios surrounding Georgia construction claims are endless as are the actual real life occurrences, which I witness happening day in and day out. To survive in the construction business world, it is best to be prepared for all possibilities. The best way to do this is to have a contract in place which fairly, resourcefully, and adequately covers almost any issues which might arise in any Georgia construction claim scenario.

For years, Georgia construction litigation was considered the more costly, more time consuming manner of dealing with disputes, and so many contracts included arbitration clauses instead. Georgia construction arbitration has many varied forms and phases, which are its counterparts to Georgia litigation. It is usually up to the parties to an arbitration, with the assistance of the arbitrator or arbitration panel, to make the decisions about pre-arbitration matters which are somewhat customized to the construction case. The most important and controversial aspect to Georgia construction arbitration clauses are that they are binding decisions and cannot be appealed to any court absent extraordinary circumstances. Even then, they are rarely overturned by a court of competent jurisdiction, but merely modified. One might say the good news in all of this is that Georgia construction arbitration can be a relatively fast and inexpensive forum for resolving Georgia construction disputes.

However, others counter this argument stating that the cost of arbitration has skyrocketed while the time it takes for a case to make its way through Georgia state courts has diminished significantly.

Two California Supreme Court cases held that the courts cannot overturn a binding arbitration award even if the arbitrator fails to follow California substantive law. As a result, it becomes literally impossible to have an erroneous decision reviewed by the courts. While this is a California case, State Supreme Court holdings often have a strong influence on the courts in other states.

Needless to say, if you enter into a Georgia Contract with arbitration, you should consult a Georgia contract lawyer with expertise in arbitration and alternative dispute resolution. This is especially true if the contract you are entering is a Georgia construction contract for new home construction, a renovation contract, or contract for any similar building, structure creation, or like-kind services.

Formerly a typical arbitration clause in a construction contract might read as follows:

All claims or disputes between the contractor and the Owner arising out of or relating to the Contract Documents, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

– American Institute of Architects specifications (formA201) –

Due to the current trends in Georgia construction law and the arbitration process itself, as an Atlanta, Georgia construction lawyer with The Libby Law Firm, I would suggest incorporating certain additional considerations into arbitration clauses when used to give the parties to an arbitration greater control. For example,

Arbitration forum. The standard dispute resolution forum in the construction industry is the American Arbitration Association (AAA). However, recently, a number of other dispute resolution service providers (e.g. Judicial Arbitration and Mediation Service “JAMS”) have developed and many attorneys now prefer them over the AAA. The choice of an arbitration forum should be reviewed in context of the cost, arbitration panel members, and forum arbitration rules. Particular attention should be paid to the forum’s arbitration rules since they are incorporated into the arbitration clause. Though, the arbitration clause may include provisions that delete all or portions of the forum’s rules.

Discovery. Most arbitration clauses limit the scope of pre-arbitration discovery. A well-drafted arbitration clause will restrict or expand discovery to correlate to the dollar value of the dispute.

Standard for Court Review of the Award. An arbitration clause can be drafted to require the arbitrators’ decision to comply with the substantive law. If the arbitrator violates such a provision, the parties to the arbitration may seek to overturn the award since the arbitrator exceeded the authority granted under the arbitration contract clause. To ensure that a court has enough information to properly review the arbitrators’ award the arbitration clause should also require the arbitrators to render a well- reasoned opinion. The opinion should include a statement of the factual determination made by the arbitrators and the conclusions of law rendered by the arbitrator. Finally, if you want the decision to be reviewed by the courts for compliance with substantive law, a provision should be included in the clause that clearly states that desire.

The best method for ensuring that a Georgia construction dispute is correctly and fairly resolved is through situation-specific clauses in properly-drafted construction contracts. The arbitration clause is one of many clauses included in a typical construction contract, and each clause can be affected greatly by recent changes in the law. It is thus wise for any construction contract to be drafted or at least reviewed by counsel before signing.

The Libby Law Firm Georgia construction lawyers can negotiate, review, and draft your construction contract in light of all of the most recent changes in accordance to Georgia construction law and arbitration proceedings, which is most favorable to you. If you are considering entering into a construction contract or amending a previous contract in light of recent changes in the law, contact our Atlanta construction contract law firm and come in for a consultation. Seeking the assistance of a seasoned Atlanta, Georgia construction contract and arbitration lawyer adept is the least you can do to protect yourself from worst case scenarios.


As a well-known Georgia construction arbitration lawyer with a perfect Avvo rating of 10, I am here to tell you that if anything can go wrong in a construction contract or in construction, it will. The very nature, imperfection, and importance construction combined with the building a home or commercial structure readily lends itself to disputes and conflict. This is likely true because for many, a home is the biggest purchase you will ever make in your life. In addition, construction is not what it seems to be on paper. It is, by its nature, imperfect and the result and methods of construction are readily subjective.

In short, protect yourself because this construction is “big deal” to parties to the contract and maintains a high rate of conflict.

If you have legal dispute or binding arbitration with a contractor, builder, sub-contractor or architect whose work does not meet or exceed Georgia industry standards, you should contact The Libby Law Firm without delay.
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As a Construction Lawyer in Atlanta, Georgia, I have noticed the poor economic climate is forcing more and more people to take desperate measures. As an Atlanta, Marietta, Buckhead and Sandy Springs Commercial Litigation Lawyer, I have seen an increase in claims by construction professionals against homebuyers who are backing out of real estate construction deals. In many of these cases, the homebuyers are looking for ways to blame construction professions for poor quality and workmanship so that they can walk away from the contract and not pay at all, or pay a lower price for work already done.

The following is a list of items that you may have received or experienced that should be considered a possible indication that the homebuyer is considering backing out of the construction contract:

• documents on behalf of the homeowner from a Georgia lawyer regarding pricing or quality of the work performed

• a Notice of Claim regarding your contractual obligations

• a written offer of settlement from the client that changes the terms of the original contract

• a proposal to inspect the building site


• an offer to settle a claim without an inspection


• a request to have a third party, for example a contractor or friend, work on or oversee the project

• continuous complaints about the quality of work

• failure to pay in a timely manner, for any reason


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