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R. Russell O'Rourke

R. O'Rourke’s Answers

351 total


  • What happens to a lien once payment has been made and final release received? How do you remove the lien if it'sno longer valid?

    I had a mechanics lien placed on my property from a subcontractor. I paid him. He sent me a final waiver/release but I see that the lien is still existing in the county records. How do I remove this? Aren't they supposed to send a satisfaction of ...

    R.’s Answer

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    Sometimes contractors "forget" to release their mechanic's liens. This may be as easy as a telephone call to the contractor. It is not your obligation to file a satisfaction of lien, it is theirs.

    Check the form that they gave you. Generally a "Final Waiver and Release" isn't the right document to satisfy a recorded mechanic's lien. It should reference the lien, specify the lien's recording information and say that it is authorizing the recorder to release the lien. If it actually says that, you may, for the price of a filing fee, make this go away.

    If none of this works, check Avvo for a local construction law attorney. It may just take a letter from him or her to resolve this.

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  • I lend money ($ 3000) to a contractor and now he is not returning my money.

    I hired a contractor to do some house repair in 2013. I paid everything for related to house repair in December 2013; however, while he was working on my house, i led him $3000 after signing Promissory note and he gave me a check for $3000 with fu...

    R.’s Answer

    You may have more issues than the $3,000. If you are now having construction issues and you fail to raise them in your complaint, you may lose the right to go after him on warranty issues later. Because I am not a Georgia lawyer, I am not sure about the law in your state, but you may want to check with a construction lawyer in your area. Check Avvo for an experienced construction lawyer who does residential work, you may also have some consumer claims. A demand letter from the lawyer to the contractor may be enough.

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  • Will the new construction next to my empty lot have the right to remove my fence in order to build?

    There will be new construction (3 new homes) to be going up next to my empty lot next to my home that I own & park in. When I bought the home there was a fence that divides my property from the larger lot due for construction. The fence is mine an...

    R.’s Answer

    They will have no absolute "right" to enter your land or remove your fence, assuming that it really is on your property. You may want to consider talking with them first and offering them the right to remove your fence provided they replace it with a better one of your choice, pay you some money or both. You could even have them put up a temporary construction fence while your fence is gone and possibly add some landscaping to buffer you from the new homes. If you are going to go this route, be careful, they could promise to do that, then never get around to making good on their promise.

    My recommendation is that you hire a local real estate lawyer to help you with the paperwork--yes, you want a written agreement.

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  • Independent Contractor for Construction

    My business is 2 months old, I am a general contractor in CA, I had a proposal of getting a crew of 3 to classify them as 1099, the work is a short burst (about 2 weeks) single family remodel, the job will cost about 3-5k in materials and labor, i...

    R.’s Answer

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    I agree with my colleagues, that if a person is working under your license, he or she should be your employee. However, there actually is a test that the IRS uses to determine whether the person is even eligible to be an independent contractor. Many states use a very similar form of questions for the determination of whether you should have classified the person as an employee for purposes of workers compensation (I am an Ohio lawyer, Ohio "taxes" for workers comp., rather than permitting private insurance) and other employment related taxes. Unfortunately, this isn't definitive. There are still lawsuits to determine what the correct answers to the questions should have been, because they aren't always clear. Even worse, the form that you will likely get them to sign saying that they are a 1099 person doesn't carry much weight and if they are hurt or the IRS comes after them for failing to pay taxes, including FICA, you are the one that they are going to look at for payment.

    Hiring an individual as an independent contractor is dangerous. If they really are a business, pay their own taxes, have their own workers comp account, etc., you are safer. Another issue is workers comp itself. If they are hurt on your job, they will file a workers comp claim against you. Now YOU have to prove that they weren't an employee. If it is determined that they SHOULD have been an employee, you will become a non-complying employer and be responsible for their awards. Alternatively, if they really aren't employees, you are not protected by the workers comp laws and they can sue you for negligence in their injuries.

    If you are going to hire them as independent contractors, be sure that you do it the way you would, hopefully, hire any subcontractor, with a contract, requiring them to act as a business, having workers comp coverage, liability insurance and everything else that a real business would.

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  • Does a Florida construction lien apply to the property in other state?

    A Florida based contractor threatens to intend a lien on my property in GA because I did not pay a full price. I did not pay the full price because of the poor workmanship and poor quality materials used that resulted in I have to hire the differe...

    R.’s Answer

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    The problem that you have is that while he may have been complying with Florida law in giving a Notice of Intent to Lien, Georgia apparently has no corresponding law. He did work on your property in Georgia. All that he has to do to perfect a mechanic's lien against your Georgia property is comply with Georgia law. The fact that he is a Florida contractor probably has no impact in whether he has the right to be paid on a project he did in Georgia (I say probably because I don't know whether the work he did required a license and whether the license is a prerequisite to payment--it is in some states).

    I am not a Georgia lawyer, however a quick review of the statute appears to say that he has 90 days from his last work on your project to file a mechanic's lien. That will have to follow Georgia law and be filed in your county. One route you can take is to wait and see. Many contractors send notices of intent with the hope that you will just pay under the threat. If you do decide to go that route, hire a local construction lawyer to help you. Check Avvo for an experienced lawyer that has a significant part of their practice in construction.

    Although if he decided to sue you he COULD sue you in Florida, that is really stretching it. He should have to file a suit in your county. If he sues you in Florida, you will have to find a Florida lawyer (again, I recommend construction in that location), to defend the suit and, move it to your town. If he sues you in Georgia, unless the amount is negligible, you should hire a local lawyer to handle the case. The same Georgia lawyer I recommended you find is the one you should consider for the case.

    It may be helpful to hire the Georgia construction lawyer now to have him or her review your case and send a "go away" letter to the contractor as preventative medicine.

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  • Do I file where I agreed to the contract or where the work was done?

    I agreed to a contract to have some work completed on an out of town rental I own. When I agreed and discussed the contract, exchanged money, etc in was always in Batavia (Clermont CTY, Ohio) the work was supposed to be completed in Wilmington, ...

    R.’s Answer

    While generally speaking the Ohio Civil Rules prescribe the venue (location) for a case to be filed, as one of 9 choices, including: where you signed the contract, where the contract work took place, where the defendant resides or has their principal place of business, Ohio has a specific statute relating to construction, ORC 4113.62(D)(2) which provides, “ Any litigation, arbitration, or other dispute resolution process provided for in the construction contract, subcontract, agreement, or understanding shall take place in the county or counties in which the improvement to real estate is located or at another location within this state mutually agreed upon by the parties.”
    The reality is that most people don’t know that this statute exists. If you file in the wrong location, but it is a location that is permitted in the Civil Rules, most people will overlook it. If they do, they waive the problem, and the case will proceed. If you are going to file in a location other than where their residence or principal place of business is, be sure that you state in the complaint your reason for venue selection, such as, “Plaintiff and Defendant entered into a contract in Clermont County, Ohio, a copy of which contract is attached hereto.”
    Unless this is a small claims case, under $3,000, I recommend that you hire a construction attorney to help you with this case. If you signed the contract personally, you are allowed to handle a case without an attorney, but small claims is designed to help individuals without attorneys, the other courts are not. Just because you may be allowed by Ohio law to handle a case without an attorney, doesn’t make it a good idea. Additionally, if you signed as a corporation, by Ohio law you need an attorney to handle the case, UNLESS you are in small claims. Most cases settle without trial. The reality is that in my own personal experience, if you have an attorney, you are most likely to settle the case without the risk of trial. If you need help finding a local attorney, feel free to call me. I’ll be glad to help.

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  • Contractor Messed Up On Work And Demanding Payment In Full And Will Not Repair?

    We hired a contractor to build an addition on our home and it was completed and we paid him in full for the work. We also made a verbal agreement to have him do some additional work including putting new tile. The contract for the addition was s...

    R.’s Answer

    I agree with my colleague, you will do better to speak with a local attorney to write a letter for you; often a letter from an attorney gets the matter resolved faster than a letter from you. A simple letter really shouldn’t cost very much and may open the door to the contractor calling you to resolve the matter. If you engage the lawyer to handle the negotiations for you, expect to pay more, but don’t walk away from a lawyer based solely on an hourly rate. A $350 an hour lawyer that can do the work in half an hour because of his or her experience can be less expensive than a $100 lawyer who takes 5 hours to research the issue and then has a lackluster performance.
    Additionally, there may be some issues about consumer law violations. I don't know about Florida, but Ohio has some very strong consumer laws what would help you, perhaps even permit you to cancel your contract and get all of your money back (that can work in Ohio in the right circumstances), so check Avvo for a local lawyer who knows both construction and consumer laws.

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  • Is a "Mechanics Lien" action subject to individual state rules or universal US governmental rules?

    In this instance the work was performed in NC and the boat is now registered in CT. thanks

    R.’s Answer

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    You mention that the "boat" is now registered in CT. the name "mecahnic's lien" is deceiving. There is generally no "mechanic" involved. Mecahnic's liens are liens that can be taked against real property where the property was improved by the lien claimant by the supply or labor or material. Generally, work on vehicles is an "artisan's" lien. the problem with artisan's liens is that they are uselly a possessory lien, meaning that as long as you have possession of the vehicle, here a boat, that you may have a lien on the boat for your labor or materials, as long as you have the boat in your possession.

    Lien rights of most kinds vary from state to state. This one should be governed by NC law. You likely don't have any right to a lien at this point. you may just have to file suit against the person/company who hired you to do the work.

    Check Avvo for a business collection lawyer in your area.

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  • GC threw me the Sub off a job and now wants me to pay him for doing the rest of the job.....Is that legal?

    A week ago the GC showed up at the job site, didn't like the look of the shower pan. As I tried to show him its fixable to fix what he didn't like, he just threw us off the job, told us to take off. He paid me for what work we did (we never receiv...

    R.’s Answer

    There are three questions here, first was there a breach of the contract, if so, by whom and if so, what were the damages.

    First, was there a breach? Second, if so, by Whom? The likely answer from your description is, "Yes." Either by you for not doing the work right or by the contractor for not letting you fix what appears by your description to be a simple punchlist item. The fact that "he didn't like the look," doesn't necessarily make it wrong or a default. Alternately, if you were not in breach by improper work, was he then in breach by not letting you finish, after all, you had a contract to complete the work. If your work wasn't improper or the error, if any was so nominal that it wouldn't be a breach, then HE breached the contract by throwing you off and YOU could be entitled to damages for YOUR lost profit and overhead.

    Third, Damages. Generally speaking, subject to some other minor issues, the party who breaches is responsible for the other's damages. If you breached and it cost him extra to finish the joob, you are responsible for the difference between what he would have paid you if you had finished and what it actually cost him, even if he used his own forces, to finish the job. If he breached, you could be entitled to the total cost of your contract, less the amount you saved by not haveing to perform (giving you your overhead and profit).

    YOu should check with a local lawyer to assure that all of this works exactly like this in your jurisdiction. Check Avvo for an attorney who has construction as a major practice area.

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  • Can a used car dealer sell a car knowing it had a broken speedometer?

    my daughter was sold a car with a broken speedometer cable,and they waited until after she paaid for the car that they didnt do 30 day tags and they told her to drive the car home about 15 miles without plate,this isnt legal is it? s

    R.’s Answer

    There are state and federal laws that require a dealer to disclose speedometer discrepancies. (I don't practice in this area of the law, but I thought that it was interesting so I checked).. Ohio DOES have a law. See attached link. The key is that a person cannot transfer a car without disclosing the fact that the odometer is not properly functioning. The question is, when does a transfer occur? The statute (attached) says, when ownership changes (duh), but it SEEMS as though ownership changed, even though title hadn't transferred, when the agreement to purchase the car was signed and the money was paid.

    I recommend that you check with a local consumer law attorney who can help you. There are big penalties for dealers who do bad things like this. A friend of mine had a case where the dealer had a typo on the title actually saying that the mileage was slightly higher that reality (they transposed two the hundreds and tens numerals in the mileage disclosure, making the car appear WORSE than it really was. Still it is a technical violation. The buyer still sued and the dealer paid her some real money.

    Check Avvo for a local consumer attorney. They should be able to give you the help you need. Consumer laws like these often let you recover attorneys fees, as well as damages. The consumer lawyer should know.

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