Defending a Mechanic’s Lien in Georgia

Hiring a contractor for a home remodel or repair can be at the same time a rewarding and troublesome experience.  On one hand, finally updating that kitchen that looks twenty years overdue is an exciting notion.  On the other, no two contractors are created equal, and often times it seems like most people make the wrong choice.

So what happens when a contractor does a subpar job on your home project, but still expects payment even though it may not be what you contracted for?  Negotiating with the contractor to complete to expectations is one option and negotiating the price down another, but what happens when the two sides simply do not see eye to eye?

All too often in these cases, the contractor files a Mechanic’s Lien on the homeowner’s property.  This legal mechanism offers the contractor a “security” in the home to compel payment by the homeowner.  The lien works to effectively cloud the title in the home, and the law requires that the lien be resolved before the homeowner transfers title of the property.

This legal mechanism works as intended when a contractor successfully delivers on a project for a homeowner and that homeowner simply is not willing to pay.  Other times however, innocent homeowners find themselves battling a lien when it was the contractor who did not meet the terms of the contract.

Although this is never something to look forward to, the filing of a lien does not automatically mean that you must pay the contractor what they demand.  Lien law in Georgia can be quite complicated, and often times these liens are not filed in a manner in which they attach to the property.  If you have recently become aware of a lien filed on your property, check to ensure that all of the following requirements have been satisfied through the filing of the lien:

  • The builder provided the homeowner a preliminary lien notice within a specified number of days of beginning work or delivering materials
  • The mechanics’ lien contained a minimum amount of detail about the debt (the amount, the scope of the services for which payment is due, the homeowner’s name and address, and so forth)
  • The lien was filed with the local county court or registrar of deeds within 90 days of the completion of work.

If these elements are not satisfied, then the lien is void.  If the lien filer did follow all of these steps, their work is still not done.  In order to perfect the lien, or have it fully attach to the property, the filer must commence suit within 365 days of filing the lien.  A failure to do so automatically voids the lien.  Let’s assume that the contractor satisfies all of these steps, now what?

When a contractor commences suit to perfect the lien, it operates similarly to any other lawsuit.  There is a complaint filed, and the defendant is allowed time to answer.  Then commences discovery and the actual hearing.  This presents both sides with another opportunity to settle the matter outside of court, however at this stage it is likely that both parties are entrenched in their position, and the contractor has paid considerable money in the enforcement of the lien by this stage.

By disputing the claim in the lien, you are effectively stating that what the contractor claims is not true.  Was the quality of workmanship subpar, were the materials not the same as agreed upon, or did the contractor not meet other material provisions of the contract?  It is advised that you retain all documentation pertaining to the contract and speak with a qualified attorney who can advocate on your behalf to protect your rights.

If you are experiencing a lien issue on your home and the contents of the lien are under dispute, give us a call!  Thrift & McLemore’s attorneys have many years’ experience in both filing and defending liens, and will fight to get you the recourse that you deserve.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150.

Suing for Latent Defects in a Home Purchase in Georgia

Purchasing a home may be one of the most rewarding, yet terrifying transactions that a consumer can make in their lifetime.  It is universally understood for many of us that it is the single largest purchase we will ever make.  A commitment this large can make even the most self-assured buyer uneasy. 

Obvious defects in a home are not as worrisome in this case, as cracked walls and non-working electricity are straightforward to diagnose.  Issues that are less obvious are the ones that keep the would be purchaser up late at night.  These issues are referred to as “latent defects”.  Latent defects are those problems with property that are not visible to the naked eye.  These issues can be wide ranging, like asbestos in older homes, corroded piping that leads to a plumbing leak, or carbon monoxide leaking into the home.

In Georgia, like many states, the seller is required to provide disclosures of all known defects, obvious or not.  The purpose is to inform the cautious buyer of any issues that they may incur, and to avoid purchasing a home with such defects that they will have to fix.  Of course, while this is the law, this is not always followed to the extent a purchaser would like.

What happens when you have bought a home, only to find that latent defects exist and the seller failed to inform you?  While it is an uphill battle, you certainly do have options.  While you cannot seek remedy from everyone involved, there are a select few parties you can seek recourse from:

The Seller – As mentioned above, the seller in Georgia is required to provide disclosures on the home.  This disclosure requires the seller to provide a list of defects on the home that they are aware of, but may not be obvious.  While a seller may later deny that they knew about this, patchwork on drywall found after purchase where a leak has formed is an obvious sign that the seller knew there was an issue.

The Sellers agent – similar to the seller, the agent must disclose when asked of any defects on the home, and while their duties are limited, depending on the circumstances they may be on the hook as well.

The home inspector – While Georgia does not require inspections on the purchase of a home, a prudent purchaser will always have one conducted.  The inspector is a trained individual, who is well versed in home construction and accordingly has a higher aptitude for uncovering these issues.  Depending on the issue, a home inspector may be liable for missing it in their inspection of the home.

So now, you have a latent defect, and there is a responsibility for the parties that have not been met, but do you have a case?  There are certain conditions that need to be met before you can proceed. 

Was the defect there before you bought the home?  General wear and tear on the home is not actionable if the loss merely occurs under your ownership, however if the condition was pre-existing then you should be ok to proceed.  Is it a non-obvious defect that was not disclosed, but a prior party was aware of?  In the example above, plumbing may not always be an obvious issue, but if you later find steps have been taken to repair and conceal, and you relied on the non-disclosure of those parties, this condition will have been met.  Finally, the harmed purchaser must prove damages.  Is there an actual cost of repair, or a decrease in the home’s value as a result of the defect?  This will be what your claim in a lawsuit amounts to.

There are a number of legal theories that you can bring against the responsible parties depending on the situation.  It is recommended to review your case with a qualified attorney beforehand to ensure you are bringing an action on the correct theory.  Some of these claims include failure to disclose, negligence, fraud, breach of contract, breach of warranty, and negligent misrepresentation.

If you have recently purchased a home and discover a latent defect, but are unsure of your options, give us a call!  Thrift & McLemore’s attorneys pride themselves on their expertise in the real estate law arena and will fight to get you the recourse that you deserve.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150.

Home Owners: Obtaining Recourse in Georgia from a Failed Home Inspection

Whether you are purchasing your first home or your fiftieth, one of the most important steps in the purchase process is hiring a home inspector.  This inspector will be the one to tell you whether the dream house you recently went under contract on is structurally sound, or contains issues that no longer qualify it as a dream home at all.

Most of us rely on these inspectors to catch every minor detail; after all, that is why you hired them in the first place!  However, what do we do when we have done our research, hired the best inspector we can find, yet defects in the home are still missed?  After all, there is nothing worse than an inspection stating the home you just purchased is in great shape, only to move in and find out that your foundation needs emergency repair, at a great cost.

In the state of Georgia, before immediately taking your grievance to the home inspector, you may have a better claim against the seller.  Although Georgia follows the mantra of “Buyer Beware”, there is a general duty in the state to disclose to would be buyers known defects within the house, especially if they are not easily discoverable.  Sellers could face liability to the buyer for failing to disclose these material defects, so long as it is provable that the defects were known.

Assuming that the seller was not aware of the defect, or there is no proof of fraudulent concealment on their part, then you can look to the home inspector for relief.  There are two general theories to obtain relief from a home inspector from a botched inspection.  Outlined below, these theories are Negligence and Breach of Contract.

Negligence, in any area of the law is generally the failure to act as a reasonable person as someone similarly situated would do.  In this case, if a different home inspector catches the issue at hand (which can be proven by getting a second opinion), then the original home inspector can be found negligent.  The state of Georgia requires all home inspectors to go through in depth training in order to be licensed, so lack of training is no defense.  One thing to consider is that the inspector is only liable to defects within the scope of the inspection.  If the house does not have running water on the day of inspection, the inspector cannot be liable for defects regarding the plumbing in the home.

Breach of Contract becomes a viable claim when the contract that you entered into with a home inspector contains language that you believe was clearly violated.  This could arise when you specifically negotiated to include tests for lead based paint, the inspection came back clean, and you later find evidence pointing to lead based paint in your home.  If you have a contract in writing with the inspector to perform any review, and you can prove that the review was never in fact completed, this would be the proper avenue for legal recourse.

Assuming that you have a valid claim based on the two legal theories above, there are still items to consider.  The home inspector may have inserted a waiver into the contract called an exculpatory clause.  This clause is common among home inspectors, and generally serves to limit liability in the event that defects in the home are uncovered after inspection.  Instead of being on the hook to replace a whole roof, they may simply attempt to refund the home inspection fee.  They may also have an arbitration or mediation provision, which would make it more difficult to file a lawsuit as a first step.

In summary, a failed home inspection in Georgia does not always leave the buyer out in the cold.  There are several avenues to recover losses in the instance that your home inspection did not uncover material defects in your home.  If you are not sure whether you have an actionable case, you should consult with an attorney before taking any action.

If you have questions regarding a home inspection gone wrong, give us a call!  Thrift & McLemore’s attorneys have represented Georgia home buyers seek legal recourse for defects in their homes not caught by the home inspection.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you today!

Home Owners: Obtaining Recourse in Georgia from a Failed Home Inspection

Whether you are purchasing your first home or your fiftieth, one of the most important steps in the purchase process is hiring a home inspector.  This inspector will be the one to tell you whether the dream house you recently went under contract on is structurally sound, or contains issues that no longer qualify it as a dream home at all.

Most of us rely on these inspectors to catch every minor detail; after all, that is why you hired them in the first place!  However, what do we do when we have done our research, hired the best inspector we can find, yet defects in the home are still missed?  After all, there is nothing worse than an inspection stating the home you just purchased is in great shape, only to move in and find out that your foundation needs emergency repair, at a great cost.

In the state of Georgia, before immediately taking your grievance to the home inspector, you may have a better claim against the seller.  Although Georgia follows the mantra of “Buyer Beware”, there is a general duty in the state to disclose to would be buyers known defects within the house, especially if they are not easily discoverable.  Sellers could face liability to the buyer for failing to disclose these material defects, so long as it is provable that the defects were known.

Assuming that the seller was not aware of the defect, or there is no proof of fraudulent concealment on their part, then you can look to the home inspector for relief.  There are two general theories to obtain relief from a home inspector from a botched inspection.  Outlined below, these theories are Negligence and Breach of Contract.

Negligence, in any area of the law is generally the failure to act as a reasonable person as someone similarly situated would do.  In this case, if a different home inspector catches the issue at hand (which can be proven by getting a second opinion), then the original home inspector can be found negligent.  The state of Georgia requires all home inspectors to go through in depth training in order to be licensed, so lack of training is no defense.  One thing to consider is that the inspector is only liable to defects within the scope of the inspection.  If the house does not have running water on the day of inspection, the inspector cannot be liable for defects regarding the plumbing in the home.

Breach of Contract becomes a viable claim when the contract that you entered into with a home inspector contains language that you believe was clearly violated.  This could arise when you specifically negotiated to include tests for lead based paint, the inspection came back clean, and you later find evidence pointing to lead based paint in your home.  If you have a contract in writing with the inspector to perform any review, and you can prove that the review was never in fact completed, this would be the proper avenue for legal recourse.

Assuming that you have a valid claim based on the two legal theories above, there are still items to consider.  The home inspector may have inserted a waiver into the contract called an exculpatory clause.  This clause is common among home inspectors, and generally serves to limit liability in the event that defects in the home are uncovered after inspection.  Instead of being on the hook to replace a whole roof, they may simply attempt to refund the home inspection fee.  They may also have an arbitration or mediation provision, which would make it more difficult to file a lawsuit as a first step.

In summary, a failed home inspection in Georgia does not always leave the buyer out in the cold.  There are several avenues to recover losses in the instance that your home inspection did not uncover material defects in your home.  If you are not sure whether you have an actionable case, you should consult with an attorney before taking any action.

If you have questions regarding a home inspection gone wrong, give us a call!  Thrift & McLemore’s attorneys have represented Georgia home buyers seek legal recourse for defects in their homes not caught by the home inspection.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you today!

A Commercial Renter’s Rights in Georgia (Credit: Kristy Borowik, bizfluent)

Residential tenants have more rights than commercial renters in Georgia. Unfortunately the landlord has more rights when it comes to commercial property lease agreements. The key to understanding any tenant’s rights is in the lease agreement, which Georgia recognizes as a legally binding contract. Unless something in the lease is illegal, any tenant’s rights are limited by the language in the lease agreement, so it is crucial for all tenants to understand their lease agreements before signing.

Shared From https://bizfluent.com/info-8412291-commercial-renters-rights-georgia.html

Before Signing the Lease

The potential commercial tenant has the right to request a subordination, non-disturbance and attornment agreement, which requires a lender to honor a tenant’s lease in the event of foreclosure on the leased property. If the landlord’s lender does not want to sign an SNDA agreement, the tenant might want to find another property to lease.

All potential tenants should inspect the property before leasing and have a lawyer look over the lease agreement before signing.

Privacy Rights

Residential tenants have the right to privacy in the rental property. The landlord must give ample notice before entering the property and enter only at a reasonable time and for a legitimate reason. The same is not true with commercial property. Landlords may enter a commercial property whenever they want, as long as they do not interfere with the commercial tenant’s business.

Insurance

Georgia requires the landlord of a commercial property to insure the property against fire and other basic risks. The commercial tenant has the right to request proof of insurance before paying rent. However, the tenant is responsible for liability insurance.

Unpaid Rent

The landlord may lock out a commercial tenant for not paying rent. This is different with residential tenants, as the landlord may need a court order before locking them out. Commercial tenants do not have the right to the leased property as they would residential property. Further, a landlord may sell the commercial tenant’s property to cover back rent.

Disputes

Georgia does not have a governmental agency that settles dispute between landlords and tenants or that has the power to force either party to behave in a particular manner. If commercial tenants cannot resolve a dispute with a landlord on their own, they must use the courts, either directly or through a lawyer, to enforce their legal rights.

If you have questions regarding commercial landlord/tenant law, let us help!  Thrift & McLemore’s attorneys have assisted numerous companies and individuals in the legal field.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you.

Is a Shift to Commercial Real Estate on the Horizon?

A snapshot of the downtown Atlanta skyline reveals a construction boom, flourishing with cranes and even more new high rises.  This is only logical, as the ten year rebound in the real estate market has sharply increased the demand for top end real estate.  According to Collier’s International, commercial vacancies in 2017 were the lowest they’ve been since the recession.  It would seem that these buildings can’t go up fast enough.

The consequence to this seemingly unending demand for commercial space is the equally aggressive prices of rent.  As commercial construction projects typically lag the economic recovery, this pent up demand creates ascendant price fluctuations until new office buildings can come online to alleviate demand.  Indeed, Colliers reports that average rent prices increased by 7% alone last year.  Class A luxury commercial real estate increased 17%.

While it is encouraging to see so much new commercial construction around the city, Colliers again accounts that the majority is in high end markets, signaling that rental prices will only continue to rise.  In a booming market, this can be seen as healthy, but as with residential, every market has its limits.

Douglas Sams, Commercial Real Estate Editor for the Atlanta Business chronicle reported yesterday that while commercial rental activity remains high, consolidations are beginning to take hold which could slow the market.  Mr. Sams breaks that AT&T, with offices in downtown and midtown, expect to vacate three buildings in Atlanta, moving operations into existing offices in an effort to save on outsized rental costs.  Consolidation of such a large Atlanta business brings pause.

Ken Ashley, Executive Director and Cushman and Wakefield, cites shifts in the traditional commercial real estate paradigm as a way that companies are coping with outsized rents.  “City Center” projects outside the perimeter are gaining steam, with projects like The Battery in Smyrna, or Avalon in Alpharetta.  Ashley states this is a good way to maintain urban environments, while taking advantage of more plentiful and affordable land.  Still he says upward price pressure will begin to take its toll, positing that subleases of space will accelerate as the needs of companies are no longer adequately met or are overburdened by the cost of the real estate.

While there are no indications on a hard stall with regards to the Commercial Real Estate market, as the ever increasing price tag for quality office space continues to rise, more and more individuals find them financially stressed and in some cases over leveraged.  For companies facing this situation, it is important to understand their options.

As this unprecedented market boom nears its cyclical end, commercial foreclosures occurrences undoubtedly will find themselves back on the rise.  After so many years of strong growth, some market stagnation is surely expected, and has already been seen on the residential side.  Whether you are a commercial landlord or a commercial tenant, in order to protect your interests you should at the very least have a functioning knowledge of commercial foreclosure.

Commercial foreclosure operates similarly to residential foreclosure in Georgia.  Georgia law allows non-judicial foreclosure is legal meaning that when the borrower defaults on the mortgage, either by falling behind on payments or failing to abide by the terms of the agreement, the lender can accelerate the loan and commence foreclosure without the intervention of the court.  This can speed up the process of foreclosure and catch many affected off guard.  The need for awareness applies not only to owners of commercial real estate, but tenants’ rights are also affected.

Before allowing your organization to find itself on the wrong end of these proceedings, you absolutely must speak with competent counsel who can educate you with regard to your options.  Thrift & McLemore’s attorneys have made a career in the commercial real estate arena and can help with your exact situation.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-671-4031 to discuss how we can assist you with protecting your rights and keeping your commercial property or rental out of foreclosure today.

Thrift & McLemore, LLC announces the completion of commercial leases.

Atlanta (5.18.17) – Thrift & McLemore, LLC announces the completion of all negotiated commercial leases for new a 175-acre mixed-use development, with anchor tenants such as Whole Foods Market and iPic Theaters. For more information concerning Thrift & McLemore’s commercial leasing practice, please contact Ryan McLemore at 678.671.4031 or [email protected].

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