Paying the Contractor and the Law

When you decide to hire a home improvement contractor, of course, he or she needs to get paid.  Massachusetts law Chapter 142A says several things about payment:

1.  A contractor cannot ask for more than 1/3 up front, unless there are special order items involved;
2.  A contractor cannot demand final payment until the project is completed to the mutual satisfaction of the parties;
3.  The contract must be in writing if it is in excess of $1,000 and must state the total amount agreed to be paid for the work performed; and
4. The contract must list a schedule of payments.

When you decide to undertake a home improvement project, make sure that your payment schedule is clear.  It may be a good idea to tie payments to completion milestones, such as when the framing is done or the floors installed.  Payments tied to a percentage completion can be murky and subject to disagreement. 

Make sure you are comfortable with the payment terms before you sign on the dotted line.

10 Years and Counting . . .

Ten years ago today, Tanowitz Law Office, was born.  In the past decade, the firm has grown from one person to three and we have moved offices 3 times.  Then years ago, I had a three year old and a three month old.  Now I have -- gasp -- a thirteen year old, a ten year old and as a bonus a nearly eight year old.  We look forward to many more years of helping people in the areas of home improvement disputes, landlord tenant issues, commercial collections and general business litigation.

How to Pick the Right Home Improvement Contractor

While winter is still upon us (despite the mild weather), now is the time when many people are planning a warm weather renovation.  If you fall into this category, before you hire a home improvement contractor, here are some things to think about before you sign on the dotted line.

• First, ask friends, family, colleagues, and neighbors for referrals. Receiving a referral from someone you know is often the best way to find the best person to do the job.
• Once you receive the referrals do not accept them without doing your own homework.  If your neighbor needed her half-bath redone and you want to add a huge addition, her contractor may not be the right one for you.  Some contractors specialize and you don't want to hire a kitchen and bath person if you plan on gutting the interior of your home.
• Don't just ask for references from the contractor. Rather, ask the contractor for the names of the last 3 projects he has completed or is presently working on. Also, ask to visit one or more of his current work sites. 
• Make sure your contractor is registered and licensed as a construction supervisor. A construction supervisor is licensed by the state and is required to take an examination.  Making sure your contractor is a registered HIC is the first step to being able to collect from a guaranty fund set up by the Commonwealth.  
• Make sure your contractor has insurance—worker’s compensation and comprehensive general liability for certain and errors and omissions if your contractor can find such a policy.  You may want to consider finding out whether you can purchase a rider to your own policy for a nominal cost. That way, if something goes wrong you will at least be reimbursed. The insurance companies can then fight out who ultimately pays the claim, not you.
• Seriously consider having a lawyer draft or review a contract for you.  There are many provisions which should be included and others which must be included as a matter of law.  

You can hear me talk more about hiring a home improvement contractor on March 29 at 7 pm at my office.  You can sign up here:  http://www.eventbrite.com/myevent?eid=2943609415

The Today Show on Renting

This morning the Today Show had a segment on renting property.  You can watch the segment at this link: 
  http://video.today.msnbc.msn.com/today/46219482 .  Barbara Corcoran has a lot of good advice, however, I question whether one should pay 6 months of rent in advance. In Massachusetts, it is not even clear to me that a tenant could do such a thing, even if it was completely voluntary.  In any event, paying in advance poses risks for both the landlord and the tenant.  When the tenant, pays in advance, he or she loses her leverage to withhold rent or to even threaten to withhold rent if something serious does go wrong.  Second, a landlord is only entitled to collect rent on the due date for the month it is due.  Even if a tenant voluntarily pays, the tenant could change his or her story and say that the 6 month payment was compulsory.  For those reasons, I'd say its not worth it to consider advance payments.

Second, in Massachusetts, every landlord must provide a written statement of condition for the tenant to fill out.  The tenant absolutely needs to point out what is wrong with the apartment when they move in so it can be fixed and so he or she is not charged for it on the way out.  On the flip side, if the landlord does not obtain that signed, written statement of condition, they are going to have a very difficult time deducting the damage from any security deposit at the end of the tenancy. 

The Importance of Lead Paint Disclosure

The U.S. Environmental Protection Agency (EPA) recently fined three Massachusetts property management companies for their failure to disclosure the presence of lead paint in 11 rental units. All together, the three companies agreed to pay $16,000 to resolve claims by the EPA that they violated the federal lead paint disclosure law. It is common knowledge these days that lead-based paint is a hazard, but few landlords know their responsibilities under the law regarding how to handle rental units that still possess lead paint. Moreover, landlords are not the only ones who need to be aware of their legal responsibilities – the federal lead paint disclosure law applies to property owners, property managers, and real estate agents alike.

Under Massachusetts law, landlords also have responsibilities regarding lead paint. In short, the existence of lead paint in a residential unit is a violation of the State Sanitary Code, though the landlord may delay a full de-leading under specific circumstances laid out by statute. A Massachusetts landlord is also required to supply prospective tenants with documents notifying the tenant of the presence of lead paint. Failure to comply with the lead paint statutes and regulations can subject the landlord to damages, and landlords who willfully fail to take action after notification of the presence of lead paint are liable for treble damages.

As the recent EPA fines prove, if you are a landlord, real estate agent, or anyone else who regularly deals with property management, you must know your responsibilities under the law, or suffer costly consequences.

Speaking Event: Be A Smart Residential Landlord

For 2012, I'll be speaking about one topic or another relating to my practice areas.  The first one is scheduled for February 15, 2012 at my office and the subject is "Be a Smart Residential Landlord:  How to Make Money and Stay Out of Trouble."

I'll be speaking about the various statutes and regulations that come into play when you are a residential landlord, and what you need to do legally and practically to, as the name states, stay out of trouble and make some money. 

Please join me for this free event.  My office is small so space is limited.  Please click the link below to sign up on eventbrite.

http://tinyurl.com/7d5nt56

Spousal Communications

There is an old common law Massachusetts evidentiary rule whereby private conversations between spouses are not admissible evidence in legal proceedings, including depositions.  This “disqualification” applies even if both spouses consent to the evidence, and also survives the death of either spouse.  The original notion behind this rule was to preserve marital harmony and the confidentiality of the marital unit.  This rule applies to both criminal and civil cases.  You have probably seen some suspenseful variation of this rule on a legal show such as Law & Order.

However, under current Massachusetts rules, written communications (including electronic mail) are not considered “conversations” and are  admissible, unless otherwise prohibited by another rule of evidence.  Under the long existing, but never enacted, proposed Massachusetts Rules of Evidence, “conversations” would be replaced with “communications” to cover private written communications between spouses.  Obviously, this evidence is often raised and relevant in divorce proceedings, but can also be relevant in a variety of civil and criminal matters.  Until the day that Massachusetts adopts these Uniform Rules of Evidence, watch what you write to your spouse!