Lunch With A Lawyer - June 13, 2017

 

 

Video Summary

 

Good morning. We're here on our 12th edition of Lunch With a Lawyer. I would like to encourage whoever is listening or if you tune in later if you would post any questions, any legal questions, you may have about anything to us, if you post it, we will be glad to try and answer it. I try and come up with some topic that I think that has somewhat broad appeal, that people may be interested in. Today, we're talking about home improvements. What do you do as far as that's concerned? What you need to be concerned about? I get contacted routinely about whenever I'm putting a roof on or if I'm going to have a contractor come in and do some work on my property, what about it? Most of the time, it's already too late. They've got some problems, but anytime that you get ready to do some home improvement, the first thing you need to do is be sure you check out whoever the contractor is who's working on your house. You need to check with the Better Business Bureau, need to Google them or whatever and see what their reputation is.

 

You also need to make sure that they're a licensed contractor. That's huge. Sometimes folks are not licensed contractors. Are they licensed contractors to do the work that they're supposed to do? Usually, you're probably looking at a licensed building contractor for something as simple as replacing windows that you have to have a licensed contractor. Once you have the contractor, you need to get, of course, make sure he has his license number. I'm assuming that they would have Workman's Compensation, as far as that's concerned, so if anyone was hurt.

 

The next thing is whenever you look at his contract, he'll probably ask for a deposit, but you don't want to give him all the money until such time as he has completed the job. You want to have a substantial hold back. One of the examples I've seen is that is whenever you're building a pool, there's probably three or four different draws, so you always want to make it so that hopefully you can have enough money that if the contractor would leave that you would still have enough money to complete the job, which is very difficult to do, but don't go paying the contractor the money, all the money, until the job has all been completed and you have a final inspection by the building department, which brings us to is he needs to pull a building permit.

 

You don't want your contractor out there doing work without pulling a building permit because that can come back to haunt you, particularly if the building department comes back and finds that you didn't pull the permit. They can red tag you. Then you've got to go back and get specifications or there's double the fine and your contractor may be long gone as far as that's concerned.

 

You also need to look at the contract and just make sure it's a fixed price, or if there is some exceptions for additional materials or whatever, that's outlined and you have a little better idea of that, if possible, and this is one of the tough ones and you rarely are able to do this, but you need to put an outside date on when the contractor's going to start the work and how long it's going to be before they complete the work and further put in there that if they don't have it done by a particular date that you're in a position to terminate the contract and have someone else complete the work. They're going to talk about delays or whatever, but even so, if it's, let's say, putting on a roof, there shouldn't be any reason why they couldn't put on a roof within, say, 60 days from the time you do that. Particularly, be wary if a contractor says, "Well, you know, I didn't ..."

 

If he comes up with extras or something else that you want done or whatever, be sure you get it put into writing so there's no dispute. You don't get surprised at the end of the day. You need to be wary of whenever you have a contract and it has allowances, such as for a light fixture or whatever it is. Make sure that that's realistic as far as you're being able to find the appropriate fixture or it falls within your budget so that you don't have a surprise at the end of the day.

 

As part of your home improvement, you'll also need to ... The contractor will have you sign, in order to be able to get the building permit, a Notice of Commencement. A Notice of Commencement ties into the construction lien statute, and that's the Commencement and it's the obligation of you, the owner, to be sure that a Notice of Commencement has been filed. That is something the contractor should be able to complete that shows who the owner is, who the contractor is, and if any material men of the contractor or any subcontractor who does work through the contractor, they know who they need to send a Notice to Owner. That's a notice that they're giving the owner that says, "Well, look, before you pay the contractor, make sure we've been paid for whatever materials or services we've performed on the job."

 

That's the purpose of the Notice of Commencement to identify contract and owner and where to send the Notice to Owner. Also, if they don't get paid, as far as filing a claim of lien. That is something that whenever the contractor gets a draw, if they get one draw, you should ask the contractor for a Progress Payment Affidavit saying that they paid everybody up through the date of you're giving them the draw. Then whenever they complete the job, you need to get them to give you a Contractor's Final Affidavit whenever you give them the final payment. Along the way, you ever get a notice from a material person, subcontractor, or laborer, that they give you a Notice to Owner, that does not mean that they haven't been paid. That just means that you need to check with them before you make another payment to your contractor. You get a partial lien waiver, as far as if you receive a Notice to Owner.

 

Usually, with small jobs, you don't wind up with Notices to Owner, but that is something that you need to deal with, but you do need to stay on top of your contractor or whoever you select to give you Progress Payment Affidavits saying that they've paid everybody up through the date that you give them the money, and then hopefully they go about completing it. If they get the final inspection, you're probably obligated ... You are obligated, in fact, to pay them what is owed under the contract. You may have a punch list item, as far as items that they need to address, and that's something that you need to work with them on and ask them for the warranties, as far as your whatever, manufacturer's warranties, such as if it's an air conditioner or any type of equipment.

 

With roofs, it's interesting. I think the warranty, as far as a 30-year shingle roof, I think the warranties are right on the shingle, the paper that bundles the shingles, and I rarely think that you wind up with the shingle warranty, but you might ask him if he wouldn't provide with you that. Also, I'd ask him about what kind of warranty your contractor gives you as far as the work that's being done on the property. You need to talk to them, as far as that should be in the contract that they'll provide a warranty as far as their labor's concerned if they didn't do it properly.

 

If you run into a situation where you find that they have done defective work on that, there is a particular statute where you have to give them notice in order for them to be able to come back and re-execute the work once they receive this notice.

 

These are some of the things that you need to look at, particularly if we have construction defect. A lot of this gets very expensive, so hopefully your construction defects are not so severe that you can't ... They're under $5,000 so you can go to Small Claims Court. If you have to hire a lawyer, as far as a construction contract is concerned and if litigation is required, it may take a lot of money and sometimes a lawyer costs more than what it costs to fix it.

 

If you do have defective workmanship, as far as your contractor's concerned, what I would advise you, before you go see a lawyer, is to call another contractor or someone and ask them for them to give you an estimate of what it's going to cost to correct the problem or to finish the job. That way, you're quantifying or knowing in dollars and cents how much you need in order to have this problem fixed. That is important, particularly if you go see a lawyer, and that way, you know how close you are, either over or under the $5,000 threshold, and then also what dollar amount it is and how much the estimated or budgeted attorney fees are going to be involved.

 

There is a Construction Fund through the state of Florida, but it's my understanding that it doesn't have any money, so you have to go all the way through to get a judgment against your contractor before you're able to apply to the Construction Fund for licensed contractors or whatever contractor you have and have to wait until they send you the money as far as that's concerned.

 

Looks like we may have a question here. I think Josh tells me that they can't hear him, so I'll have to repeat the question.

 

Josh: This is from Jennifer. It says, "Hi, Mr. Waller. I wanted to ask you something about probate. How do I obtain a Letter of Probate? When my husband passed away, he didn't leave behind a will."

 

Mr. Waller: All right. Did the viewers hear that question?

 

Josh: Probably best to repeat it.

 

Mr. Waller: All right. Jennifer writes in and wants to know how she goes about getting a Letter of Probate when her husband passed away and did not leave a will behind. How she goes about, number one, probate is the name of the process that you go through whenever someone passes away. As far as its Letters of Administration, and that's the authority that judge signs giving the person who's designated as the personal representative, which is more commonly known as an executor, but the term now is personal representative, and that gives the personal representative the authority to act in the behalf of the decedent.

 

In order to get those Letters of Administration, you need to petition the court.

If they didn't leave behind a will, you need to file a petition, and it's called an Intestate Petition. That means dying without a will and the Florida statute say, "Well, who's entitled to the assets of the decedent," and if it is your spouse and if it's a first marriage or he has no children other than the children of the marriage that you're in, then the Florida statute says that all the assets that he had in his name would pass to you as far as that's concerned. That is an Intestate Administration, so you file a petition, ask the court to appoint you as the personal representative, as the spouse of the widow or widower, and then there are some other documents, an oath and a possible bond be filed and you would be issued Letters of Administration.

 

As the personal representative, you have the duty to give a notice to the creditors that he may have, and they have three months. You have the job to send notice to any reasonably ascertainable creditor. You also must file an inventory within 60 days from the starting the probate process, and that is [inaudible 00:14:48] the court. Then after the period of time for the creditors has expired, you're then in a position to file a petition to terminate the estate proceeding through a petition for final distribution and discharge.

 

A lot of this we need to look at is how much or what asset was titled just in his name alone, whether he has a will or not. If it is a house, then it could be your homestead property. That's treated differently as to how you go through the estate process. If the assets, not counting the homestead property that he had in his name alone, are less than $75,000 and there are no outstanding creditors or you're willing to pay those creditors, you can file what they call a Summary Administration. When you file the petition, you say, "Well, this is the asset. I'm the heir to it," or whoever the heirs are, and ask the court to distribute the property to you.

 

Again, you need to contact a lawyer to go through these probate proceedings, to prepare the documentation. Summary Administration is less expensive and can be done within approximately, in Pasco County, in 30 days. In other counties, it varies depending on their process and how quickly they process it. The cost is adjusted accordingly.

 

If you have a very small amount, sometimes we see a small bank acct of $1,500 or a small life insurance policy or whatever, and you have paid the funeral bill and the funeral bill is more than whatever this asset is, there is a process whereby you can go directly to the clerk of the court with your paid bill and the death certificate and the asset and ask the court, go see the clerk, and it's called a Distribution Without Administration, but that's for very, very small amounts or amounts less than what the funeral bill would be.

 

Hopefully I covered the waterfront there. You asked me what time it was, and I told you how to build a watch, but hopefully I answered your question. If not, post a followup question as far as that's concerned.

Josh, we got anymore questions here?

 

Josh: No more questions at this time.

 

Mr. Waller: I probably need to, and I'll clam up here. It looks like I've been rattling on here for about 15 minutes here about your home improvements and what all you need to do with your contractors. We touched upon a little bit of probate. Again, hopefully if you're viewing this and it's not live will fell free to send your email, your questions, to the Facebook. Is that correct, Josh?

 

Josh: They can ask questions in the comment section below. They can email their questions at This e-mail address is being protected from spambots. You need JavaScript enabled to view it , and they can also check out our video archive at RDWaller.com.

Mr. Waller: Hopefully you got all that down. Here, again, you can go ahead and post them and we'll try and take them on next Lunch With a Lawyer, as far as that's concerned, or if you go to the website and you can call me. It's (727)847-2288, and I'll be happy to try and answer those. I would also pleased to announce that we have had Erica Munns join my firm and she will be taking care of the guardianships and helping me out with some of the litigation and the elder law questions. We're pleased to announce that she's joined the firm and we're looking forward to working with her as far as on a go forward basis.

 

I won't keep you too much longer so you can get to lunch a little bit earlier unless we got another question. If not, we'll see you next month, the second Tuesday of July, right after the Fourth of July I guess. All right. Thank you very much