- Effective 1/1/08 - S1245 - Retainage Reform
Effective 1/1/2002 - SB
912 Amendment to Mechanic's Lien Law
- The North Carolina Legislature is at it again
amending our mechanics' lien law. North Carolina General
Statute 44A-12.1, "an Act to Prohibit the Indexing, Docketing,
or Recording of Unauthorized Claims of Lien and to Provide for
Penalties for Filing Unauthorized Statutory Liens," became
effective January 1, 2002 and will apply to offenses committed on or
after that date. Basically, this statute directs the Clerk of
Superior Court not to index, docket, or record a claim of lien
purporting to assert a lien on real property unless the document
"appears on its face to contain all of the information required
by the stature. . . " The Clerk may, however, accept a
defective document "for filing," but must inform the
person offering the document that it will not be indexed, docketed,
or recorded in any way which will affect the title to any real
property.
Additionally, the statute also makes it a
Class 1 misdemeanor to cause or attempt to cause a claim of lien to be
filed "knowing that the filing is not authorized by statue, or with
the intent that the filing is made for an improper purpose. . .
" This is a positive development in that too many liens are
filed for improper purposes. Although intent is always difficult
to prove, this statue gives those against whom a lien is filed some
solid statutory authority for complaining.
In essence, the Legislature has made the
Clerk of Superior Court of each county the "gatekeeper" with
regard to defective liens. One might argue that the legislation is
good in that it will keep defective liens from being filed. Of
course, the down side is that valid liens that do not "look"
like they are supposed to will be denied by the Clerk. In larger,
busier counties, the Clerks will probably continue to take liens that
have all the bells and whistles, while in smaller counties the Clerks
may scrutinize liens more carefully.
Unfortunately, because there are 100
counties in North Carolina, each with its own Clerk of Superior Court
(and each usually with several assistant clerks as well), there will be
no uniform application of the new statute. More than likely,
however, most Clerks will spend less time scrutinizing a lien that has
been prepared by a lawyer. If you chose to prepare a lien
yourself, make sure and utilize the statutory form provided in
44A-12. If you have concerns about preparing a valid lien, you
should consider consulting with a construction lawyer, especially if
there is a significant amount of money at stake. A lien is a
powerful tool, but it can be easily lost or invalidated if it does not
strictly comply with all of the statutory requirements.
Copies of this new law are available by calling the ASAC office at
877-285-3356
Contributed by: The Construction
and Surety Group, Adams Kleemeier Hagan Hannah & Fouts PLLC,
Greensboro NC, 336-373-1600.
Construction
Management at Risk services are selected on the basis of
demonstrated competence and qualification without regard to fee.
After a Construction Manager at Risk is selected, the parties will then
negotiate a fee. If the best qualified firm and the Owner cannot
negotiate a fee, the Owner will then initiate contract fee negotiations
with the next best qualified contractor.
The
Construction Manager at Risk shall contract directly with the Owner and
shall publicly advertise as required by N.C. Gen. Stat. 143-129.
The Owner and Construction Manager will work together to pre-qualify
first-tier subcontractors before the Construction Manager at Risk
accepts bids.
Construction Manager at Risk and first-tier subcontractors shall make a
good faith effort to recruit and select minority businesses for
participation in contracts.
Minority
Business Participation:
-
Each state building project shall have a verifiable ten per cent (10%)
goal for minority participation including
building projects done by a private entity on a facility to be leased or
purchased by the State.
- On projects costing $300,000.00 or more, each first-tier subcontractor
or Construction Manager at Risk Projects shall identify on its bid the
minority businesses that it will use on its project.
Public Construction Contracts may be
awarded pursuant to ANY of the following methods: Separate Prime, Single
Prime, Dual Bidding, Construction Manager at Risk, Alternative
Contracting Methods authorized by the State Building Commission
By: S. Jennifer Rader, Attorney, The
Safran Law Offices, Raleigh NC (919-828-1396)
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Effective 10/1/01
- House Bill 1053 shortens time
period in which claimant may bring action on payment bond. Any
claimant who has a direct contractual relationship with any
subcontractor but has no contractual relationship, express or
implied, with the contractor may bring an action on the payment bond
only if he has given written notice to the contractor within 120
days (instead of current 180 days) from the date on which
the claimant performed the last of the labor or furnished the last
of the materials for which he claims payment, stating with
substantial accuracy the amount claimed and the name of the person
for whom the work was performed or to whom the material was
furnished. Applies to actions on payment bonds filed on or
after 10/01/01 |
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