Volume 1, Issue 1
Newsletter of the Rees Broome Construction Law Group
Winter 2012

 

Issue Highlights

Welcome to Rees Broome Construction Law Group Practice
 
Mechanic’s Lien Law – Improved!
 
Principal Profiles:
Bruce Titus
Mark Graham
Andy Felice


RB Construction
Law Group:

  • Bruce Titus
  • Mark Graham
  • Andy Felice
  • Maureen Carr
  • Alison Mullins

 

 

Rees Broome Launches Construction Law Group Newsletter

Welcome to the first edition of Means & Methods, a newsletter to be published quarterly by the RB Construction Law Group. This has been a banner year for the RB Construction Law Group for several reasons. In the spring, we welcomed Andy Felice, a first-rate construction lawyer and former partner at Katz & Stone, LLP. As you will see below, at the end of the year we will be adding five more recognized construction attorneys to our practice group.

Through this newsletter we plan to provide the construction community and our construction/development clients with critical statutory updates, as well as recent developments and trends in construction law. We will include a few “means and methods” to assist our readers in minimizing risks and maximizing profits in connection with development and construction projects. From time to time, we will also introduce you to the attorneys in our practice group.

We hope that you will find Means & Methods to be of interest and helpful in your business. Of course, we welcome your comments and any suggestions regarding legal issues that may be of interest to you. We look forward to working with you in the years to come.

     

Virginia Mechanic’s Lien Law Update

Effective July 1, 2012, the Virginia mechanic’s lien law became a little clearer for owners, developers and site improvement contractors.

In Virginia, contractors who perform site development work, such as installing streets, storm water facilities, sanitary and storm sewers, and/or water lines to individual lots in a development or condominium community have the ability to assert a mechanic’s lien against all of the lots/units in the development for the proportional value of the total amount that may be due the contractor. See Va. Code §43-3B. This provision is unique to Virginia and allows site development contractors to enjoy the benefit of statutory lien rights.

Otherwise, it would be difficult for them to assert a mechanic’s lien because: (1) their work is either performed over a great number of lots and often the contractor cannot accurately quantify the amount of work performed on an individual lot for purposes of ascertaining a lien amount for the individual lot and/or (2) their work is performed on a parcel incapable of being liened for one reason or another (i.e., streets in a development) -- even though the entire development benefits from the work on that parcel.

The Virginia mechanic’s lien law allows the site improvement contractor to obtain a mechanic’s lien against each lot in the development in a proportional amount based upon the total number of lots in the development. To obtain the benefit of Va. Code §43-3B, the lien claimant is required to record a “disclosure statement” in advance of recording its mechanic’s lien. The disclosure statement is intended to give notice of the extent of a mechanic’s lien which may be potentially recorded against the property by virtue of a site improvement contractor’s work. Thereafter, prospective purchasers of the property are on notice that a mechanic’s lien may later be claimed against the property by a contractor for site improvement work.

As with most statutes, implementation and interpretation of Va. Code §43-3B left contractors and their attorneys with more questions than answers. First, the law did not define what was meant by the word “lot” in the statute and, thus, it was not clear whether outlots, common areas and unbuildable parcels would be considered “lots” under the statute. Since a party’s mechanic’s lien would be proportioned among the “lots” in the development, knowing the number of “lots” was an important element to a lien claim. Second, before the recent amendment, Va. Code §43-3B required that in preparing its “disclosure statement” the contractor must identify the “total cost of the labor or materials.” Questions arose as to whether the contractor was required to use the full amount of its contract value or whether the contractor was required to use only the balance left to be paid out on its contract.

These two issues were litigated in the recent case, Hazel v. Sycolin Ctr., Ltd., which resulted in an unpublished Virginia Supreme Court decision in favor of the contractor who asserted a mechanic’s lien against a development. While the case was pending, the General Assembly enacted legislation amending Va. Code §43-3B to address the very issues presented in the Hazel case. As a result of the recent amendments, Va. Code §43-3B now provides that parcels of land which are common areas or which are being developed for the benefit of development as a whole and not for resale are not to be counted as “lots” in the disclosure statement. In addition, the amendment clarified that the lien claimant should include in its disclosure statement the total value of the work contracted for by the claimant not simply the balance that may be left on its contract at the time the disclosure statement is prepared. While claiming and perfecting mechanic’s liens is never an easy task, the Hazel case and the recent amendments to Va. Code §43-3B have now clarified an important aspect of the lien law.


Rees Broome is especially proud to announce that the lead counsel for the contractor in the Hazel case, Stephen Annino, will be joining Rees Broome along with Joe Kasimer, Gina Schaecher, Joe Pierce, and Jordy Murray beginning January 1, 2013!


Principal Profiles

Bruce Titus

Bruce is the original member of the Rees Broome Construction Law Group. Formerly a partner at Venable, Bruce joined the firm in 1997. Bruce’s practice focuses on the resolution of a wide array of construction issues including design and structural failures, environmental issues, property damage, delay and other delivery issues. While he has represented owners and contractors throughout his career, he often represents design professionals in virtually all aspects of their business activity. He also provides mediation and arbitration services through The McCammon Group, Ltd.

Bruce was selected by his peers for inclusion in The Best Lawyers in America (2008 - 2013) (Copyright 2006 by Woodward/White, Inc. of Aiken, S.C.), has been recognized as one of “Virginia’s Legal Elite”, and has been named one of “Virginia Super Lawyers” and “Washington DC Super Lawyers.”

Bruce is a former Chair of the Virginia State Bar Construction Law Section. For many years he has served on and is currently Vice Chair of the Fairfax County Engineering Standards Review Committee.

When the opportunity presents itself, Bruce can be found on a sailboat or spending time with his wife, Susan Hicks, their four daughters and six grandsons.


Mark Graham

Mark joined the firm in 1998 and is an experienced construction law practitioner who serves as a member of the firm's management committee and a co-chairman of the firm's litigation section. Mark has represented architects, engineers, contractors, owners and associations in commercial and residential disputes throughout the Metropolitan DC area.  Mark's expertise includes all facets of dispute resolution (litigation, arbitration, mediation, etc.) and includes risk management, transaction counseling, contract formation and negotiations for construction projects.

Mark is a frequent speaker at construction related forums and seminars and has been recognized as a Virginia Superlawyer in the area of construction law. Mark is a straightforward problem-solver who pays keen attention to the needs and expectations of his clients and works diligently to obtain big-picture results that are in the best interests of his clients.

Mark lives in Loudoun County with his wife, Maura, and their three daughters.  Mark was a scholarship athlete on the Boston College Men's Soccer team and an accomplished golfer with four "holes-in-one" to his credit.  Mark currently serves on the Board of his neighborhood swim team and coaches his daughters' soccer teams.


Andy Felice

Andy has practiced construction law in the Washington Metropolitan area for over 25 years. Andy joined Rees Broome’s Construction Law Group in March 2012. He is a former principal of Katz & Stone, LLP. During the course of Andy’s practice he has assisted and represented owners, contractors, subcontractors and suppliers involved in commercial and residential construction projects on issues including construction claims, construction defect issues, mechanic’s liens, payment bond claims, performance issues, and delay claims.

In addition, Andy routinely counsels clients with regard to contract drafting and negotiation. In those situations where disputes cannot be resolved at the pre-claim level, Andy represents clients in private mediation and arbitration proceedings as well as in litigation in both state and federal courts. Andy has successfully argued cases before the Supreme Court of Virginia and the Maryland Court of Special Appeals. Andy has earned the AV® Preeminent™ Peer Review rating from Martindale-Hubbell.

Andy lives in the Mt. Vernon area of Alexandria with his wife, Caroline, and has been active in coaching youth sports. They have two daughters who are currently in college.


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This Rees Broome, PC newsletter is intended solely for use by its clients and their management agents and may not otherwise be reproduced or used without permission of Rees Broome, PC. The information contained herein is generally reliable but independent consultation with counsel should be engaged to confirm the applicability of the information to your community or circumstances.

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