Any legal issue concerning the relations between construction professionals and other parties involved in the building process is considered construction law. Since this area of law is relatively broad, legal professionals who specialize in this practice area draw a diversified array of clients, including those who draft and initiate projects, those involved in the financial aspect of the project, the design team, those actually on the ground doing the construction and other involved participants. Therefore, attorneys who delve into this area of practice oftentimes find themselves representing clientele from a number of industries, including (but not limited to) developers, contractors, material suppliers, investors, architects, engineers, banks, surveyors, owners, insurance companies, and other professionals.
The construction industry is vast and complex, which requires a need for attorneys to become involved in a wide range of legal services in order to assist clients in resolving their construction-related disputes. An attorney may be present and kept informed throughout the course of operations in a construction project to focus on construction transactions. An attorney may also take on the task of representing a party in the event that there is a violation of a contract or any other contractual disputes among parties.
With all the many moving parts associated with development and construction projects comes inevitable challenges. Despite how smoothly a team plans for an operation to run, there is so much going on that most construction teams expect an issue of some sort to arise. One of the most common issues that companies face are the numerous perplexities and misunderstandings that emerge due to a contract. The idea of a contract is simple, being that it is a promise or set of promises that the law will enforce and recognize. The goal of this document is to compel each party to keep their word since there is proof they agreed to do so. But unfortunately, the threat of legal accountability doesn't always coax people to keep their word, especially when the financial stakes are high. There are three types of damages a client will be able to receive in regard to breach of contract disputes: damages for defective performance, schedule related damages and damages for a failure to perform.
Construction claims arguing that there has been a breach of a contract frequently involve cases when a promise has been carried out, but the work involves defects. Recovering damages in these cases consist of calculating the construction work that has been done in comparison to the performance that has been required in conjunction to the contract. Oftentimes plaintiffs who win cases for defective performance are awarded the amount of money that it would take to fully remedy the repairs. But in more complex cases, factors like the value of the property with the defects and its estimated value had there been no defects is taken into account. Nonetheless, each case is unique, and often the calculation of damages can be clarified with the help of a legal professional.
When a plaintiff alleges that a defendant has failed to complete an element of a construction contract, they may be entitled to recover damages. Some cases involve a demand for specific performance - that is, to require the other party to perform the contract to the letter. Other cases waive performance of that element of the contract, and instead demand monetary damages for the failure to fulfill the contract as written.
Delay in Performance
Every party involved in the construction process has a right to a reasonable expectation of a performance that is completed on time and pay that is distributed in a timely matter. Circumstances regarding why the delay was caused and who was liable will likely determine the probability of a successful outcome in court and one's eligibility for compensation.
Alternative Dispute Resolution
Since litigation can be costly and take lots of time come to a resolution, construction contracts frequently contain clauses related to alternative dispute resolution. These often refer to a specific body, including the Milwaukee Builder's Association, the American Institute of Architects, or the Wisconsin Builder's Association. Those bodies have various resources available to their members to resolve constructions disputes. Other contracts may make reference to the rules or procedures of these organizations or the American Arbitration Association, but permit the parties to retain a professional outside of those organizations to actually conduct the alternative dispute resolution procedure. Alternative dispute resolution procedures primarily include mediation and arbitration.
Mediation is a cost-effective and relatively speedy way to resolve disputes without initiating the litigation process and stepping into the courtroom. A mediator (usually a lawyer or anyone well-versed in this particular area of law) would ask questions and ensure both sides fully understand the dispute and let the parties come to an agreement themselves, whether that be deciding to go to trial or agreeing to a settlement. In an arbitration, the parties basically hire a professional, who has the education and experience required to make a final decision, to listen to their case and make a decision, instead of going through the court system. This allows the process to proceed at the parties' pace rather than the pace imposed by the court system and allows the parties to select the professional or panel of professionals who will make the final decision rather than relying upon the judge assigned through the court system.
Experienced Wisconsin Attorney
Construction law is complex. If you are in a construction-related dispute and are contemplating pursuing legal recourse, do not hesitate to consult with a competent attorney. Contact Mara Spring today.