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Edward Hall Cross

Edward Cross’s Answers

10 total

  • Does a contractor have to be licensed for an at cost construction contract (no profit contract)?

    There is a dispute with a person that did a construction contract for me for 5000 dollars and he wants all his 5000 dollars but I want repairs done. He says that he was not making any money so there was no consideration. But he was being compen...

    Edward’s Answer

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    California Business and Professions Code §7031 prohibits an unlicensed contractor from filing suit for payment for work that required a license. Profit is irrelevant. The purpose of the law is to discourage unqualified individuals from performing construction work that could pose safety hazards. California law is merciless with unlicensed contractors. Nor can he sever out the portion that required a license and collect for the rest, unless the other parts were unrelated to the parts that required a license. The owner is almost always in the "driver's seat" when the contractor had no license.

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  • Is out of classification work considered unlicensed?

    I hired a licensed contractor to remodel my home. A sub (painter) scraped my ceilings and left debris, which was later tested as positive for asbestos. Mold was in the walls of my kids' rooms, hidden by paint and baseboards. When they installed th...

    Edward’s Answer

    This matter should be reviewed by an experienced construction lawyer promptly, so as to avoid the expiration of the statute of limitations. Here are some topics I would address with the lawyer:

    Unlicensed contractors in California suffer a severe penalty for performing work without a proper license: forfeiture of all pay for the work. The courts have acknowledged that this sometimes is a very harsh outcome that may result in a windfall to the owner but the policy requiring licensing trumps the contractor's rights to payment.

    Mold and asbestos can cause severe environmental and medical problems. If either is negligently disturbed, the party who caused the disturbance is liable for damages and injuries that result from the exposure, even if the party was properly licensed. Concealment of the problem may be considered fraudulent and could theoretically expose the parties to punitive damages if it was done with a conscious disregard for the rights of others.

    Some jurisdictions allow for "fear of cancer" damages, where someone has been exposed to asbestos but has not developed illness but does not want to wait to pursue a legal claim.

    Good luck,
    Ed Cross

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  • I found that there was not a building permit for structural work from contractor or original owners. Who is liable.

    I bought a house in 2006, In 2005 a company installed helical piers to fix settling but settling reoccured about a year and a half ago. I called the original contractor. They told me that no permit had been needed but I checked with the building ...

    Edward’s Answer

    This matter should be addressed by an experienced Colorado construction lawyer, and it should be done quickly, so as to avoid missing the statute of limitations. I am not licensed in Colorado law and cannot comment on Colorado law. Here are some discussion points for the consultation with the attorney:

    The lack of a permit, where one was required, may subject the contractor to civil liability to the owner, and perhaps subsequent owners. It may also subject the contractor to disciplinary action through the contractor's state license board. Attorneys are prohibited from threatening administrative action to gain advantage in a civil dispute, and some consider it bad form for non-attorneys to do it. The better approach, in my opinion, is to simply proceed with the complaint to the license board without threatening it first, assuming the attorney believes that pursuing such a claim is in the best interest of the owner.

    The standard of care requires compliance with all regulations, including permitting requirements. Proceeding with work in the absence of a permit is negligence, and perhaps "negligence per se." Those who commit acts of negligence are liable for damages that result from that negligence.

    Good luck.

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  • What can I do where the Contractor breached the contract, and where additional costs will result from the breach?

    A pipe burst in our kitchen. After material damaged by water was removed, including drywall & insulation, it was determined the moisture barrier paper next to the exterior cement was contaminated with mold. Our insurance company provides $5K to ab...

    Edward’s Answer

    Bring the contract to an experienced California construction lawyer to review the documents and the history. Here is a list of issues to discuss with the attorney:

    California's Home Improvement Laws apply to all residential repair contracts in the State. Among other things, they must include a description of the services to be performed and materials to be used. In emergency service, this can be difficult sometimes. As a general rule, mold remediation is not emergency service unless the area is still wet.

    Most agreements like the one described here will usually state the contractor will return the property to its pre-loss condition, or words to that effect. Contractors argue this constitutes an authorization to remediate mold. Insurance companies generally pay at least some expenses for mold remediation, assuming the mold was the result of an accident (e.g., pipe burst) and not a pre-existing condition, construction defect or a general maintenance problem.

    If a contractor proceeds with work without insurance company approval but then obtains the approval after the fact, then there is no loss to the owner. A contract that does not specify the price, scope and completion date does not comply with California's Home Improvement Laws. In some instances non-compliant contracts are voidable by the consumer, but the contractor is probably entitled to the reasonable value of services rendered. You should go to work on your insurance company to pay the $5,000, if it costs that much.

    I see no facts in the description that would obligate the contractor to pay for anything beyond the mold cap. That would occur, where, for example, the the contractor caused the mold. Perhaps there are other facts that would give rise to a claim like that.

    If an owner wrongfully ejects a contractor from a project, the contractor may be entitled to recover lost profits, although they very rarely ever try. Moreover, if a contractor performing residential work does not provide a notice of the statutory right to cancel within three days, the owner may cancel the contract at any time.

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  • My personal contractors license was filed fraudulently rep and partner with major home warranty companies.

    The situation is very difficult to explain but black and white to myself. These guys/girls had a scam set in place from the beginning the warranty companies new of the action and that the license was a sole ownership. They had inside relations wit...

    Edward’s Answer

    Yes, some firms provide pro bono services to clients without adequate resources to fund legal services. There are also community outreach programs that provide pro bono attorneys to the less fortunate.

    Gather all the documentation and contact an experienced attorney to prepare a formal complaint to the California State Contractors License Board and to consider possible criminal and civil action. If your name is on the license, consider putting it into inactive status. Your attorney cannot threaten criminal or administrative action to gain advantage in a civil claim, but those actions can be pursued nonetheless. If this was a sole proprietorship of yours, you may be personally liable.

    Fraud occurs where a party has, through deception or misrepresentation, caused another party to change his or her position in reliance on the deception, and caused damage. There are different species of fraud that exist in a wide array of contexts.

    Good luck,
    Ed Cross

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  • Can a landlord give exclusive use of common areas to one tenant over other tenants in an apartment complex? What are my rights?

    My neighbor has convinced my landlord to give him exclusive use of the common area outside of his apartment, a sidewalk,which includes a staircase that's used to go up and down a hillside between the two buildings in my complex. The first year I ...

    Edward’s Answer

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    Have an experienced real estate lawyer carefully review the terms of your lease and photographs of the area in an effort to confirm that this area actually constitutes a "common area." if a judge can be convinced that the use of that area is a reasonably appurtenant to your unit, the landlord may be ordered to open it for you, and perhaps refund part of your rent. This is called "abatement of rent," and is used, for example, where a room within the leasehold becomes uninhabitable. The same principle may apply.

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  • Do I need a real estate attorney for a new construction and first-time home buyer?

    We are buying a new construction in Folsom, CA. This is our first home. The builder has sent us the purchase contract to review before the signing. We would like to know if there is any need to have an attorney look through the papers, jus...

    Edward’s Answer

    I have drafted hundreds of contracts on behalf of contractors, and we are always looking for new provisions to protect the rights of our clients. Buyer beware! Builders have broad discretion to include creative terms in their contracts. It requires the skill and knowledge of an experienced construction/real estate lawyer to properly analyze the issues and advise you of your rights. Consider it cheap insurance.

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  • Constructive Eviction- I believe that the problem I am having with the landlord is constructive eviction.

    How do I get help with constructive evictions? Are there specific lawyers that deal this and what do I need to do about this? I have proof of everything she has done to me and the other tenants in writing from the landlord. She has been trying to ...

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    Yes, there are competent lawyers who specialize in representation of tenants in disputes with landlords.

    Discuss the concept of "retaliatory eviction" with your lawyer. Some states provide minimum notice requirements before a landlord may enter residential property to conduct an inspection, unless there is an emergency. There are a variety of anti-harassment laws which may provide a remedy for you. Residential landlords cannot control the details of how a tenant leads his or her personal life, although there may be some maintenance requirements. Check your lease.

    Good luck,
    Edward H. Cross

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  • My neighbor's 2 ft tall retaining wall was demolished during construction.

    There's a 2 ft tall retaining wall that was bordering my property and my neighbors. It's really old and it was falling apart. More than half of it was gone and leaning towards our side. It was destroyed while we were renovating our yard. My neighb...

    Edward’s Answer

    Unfortunately, there are many opportunists who seek to take advantage of the bad luck of others.

    Was the new retaining wall installed by a licensed contractor? What specifically is she unwilling to cooperate about?

    There is no legal obligation in the State of California for one land owner to produce insurance information to another land owner, even if the other owner has a meritorious claim for damages. If you are served with a formal claim, you may tender it to your insurance company at that time. Until then, based on the facts in your description, I would ignore the request to provide insurance information.

    However, I would ask to have an independent third-party inspection of the alleged damage on the neighbor's property. Enlist the services of an experienced, licensed engineer and perhaps a landscape contractor. Ideally, these professionals would be retained by an attorney acting on your behalf. in that case, if their opinions were adverse to your position, they could be protected from disclosure under the attorney work product doctrine.

    To manage the risk, I would err on the side of repairing anything that arguably resulted from this event. If many months have passed since this occurred, it may be unlikely that she will sue. Unless she has significant repair costs, she will be unable to find a skillful and experienced litigator to handle the matter on a contingent-fee basis. In other words, she would have to pay hourly fees. Some well-to-do landowners with too much time and lots of money will sue for the sport of it. Having done no improvements in 35 years, that does not seem to be the case here.

    In the event she does sue, your homeowners insurance may provide a defense but your premiums may increase or your policy could get canceled if the insurance company believes the risk of further coverage is excessive. As a general rule, the amount she could recover would be based on the cost of repair, prejudgment interest, and any other sums required to "make her whole." In most cases, attorneys fees are not recoverable unless the parties are in a homeowners association. Each case is different, and this is not a legal review. These comments are provided for general informational purposes only. Consult a licensed attorney regarding your rights.

    Good luck,
    Edward H. Cross

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  • We have a home remodeling project. How can we go about cancelling this contract and stopping work at this point in the project?

    We made a contract with a contractor and being new to remodeling, forgot to add a start and completion date. We did have a verbal agreement that it would be done in a month. The contract consisted of foundation repair, kitchen remodeling, and bat...

    Edward’s Answer

    Don't attempt to cancel the contract without having it reviewed by an experienced construction lawyer with knowledge of the history of the project.

    California's Home Improvement Laws provide broad protection to homeowners, pursuant to Business & Professions Code Sections 7159 and 7159.5. Violation of the rules may constitute a misdemeanor, and make the contract voidable by the homeowner.

    Among other things, a home improvement contract must state the approximate start date and completion date, and it must be in writing, signed by the contractor and the homeowner prior to commencement of any work.

    Your explanation states: "it was more of a payment agreement." California law requires a reasonably specific description of the materials to be used and services to be rendered, i.e., a written scope of work. In other words, California Home Improvement Contracts Should be more like construction contracts then "payment agreements."

    Implied in remodeling and construction contracts is a term that the contractor will perform the work according to the prevailing standard of care. Where the workmanship falls below the standard of care, the contractor has committed a material breach of contract. In most instances, a material breach will justify termination, especially where the contractor is provided notice of the breach and an opportunity to cure (here, the explanation states "we have pointed this out and he is not done anything about it"). An owner may also be justified in terminating a contract where the contractor has abandoned the project without good cause.

    Most contractors are unaware of the fact that California allows a contractor to recover lost profits where an owner breaches a contract by wrongfully ejecting the contractor from the project. The typical result, instead, is that the contractor is simply paid the reasonable value of the services rendered.

    These comments are for general informational purposes and do no constitute legal advice. A number of other technicalities may affect the outcome of this matter. Consult an experienced California construction lawyer for advice about the specific facts of your case and your rights.

    Good luck,
    Ed Cross

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