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Construction Litigation

Things to Look for in a Home Improvement Contractor

Most people don't realize that there are a series of important facts they should know about their building contractor before hiring them to build or renovate their home.  First, make sure that the contractor you are dealing with is registered with the state as Home Improvement Contractor ("HIC") and has a Construction Supervisor's License ("CSL").  Contractors who have registered as an HIC are required to pay a fee to a Guaranty Fund held by the Office of Consumer Affairs that may be available to partially reimburse the homeowner if the contractor does not perform or performs negligently.  A Construction Supervisor's License can only be obtained after the contractor has passed a test showing that he or she has knowledge of the building code, which will be important when the work is reviewed by a building inspector.  More detailed information regarding HICs and CSLs can be found on the website for Massachusetts Office of Consumer Affairs and Business Regulation.  This website also details the complaint process homeowners can use when something goes wrong.  

"Managerial Control" Key To Construction Site Negligence Claim

For a viable negligence claim against a construction project management firm, the plaintiff has the burden of showing that the defendant exercised "managerial control" over the manner in which the work was performed when the plaintiff was injured.  A recent Suffolk Superior Court ruling emphasized that in order for an injured plaintiff-laborer to bring suit against a construction manager, there must be a showing that the management company directed the work, assumed contractual responsibility, or otherwise could be deemed to have been "in control" of the jobsite.  

What Is The "Value" Of Real Property?

In litigation, such as contract disputes, construction disputes and divorces, determining the value of real property  (like the value of a marital home, for example) may become a key issue in the case.  While a seemingly simple concept, the term "value" may have several different meanings depending upon the context in which its used in litigation, and understanding the  various methods of determining "value" of real property is crucial.

Do Violations of the Building Code Violate Chapter 93A?

The Massachusetts Consumer Protection Act, General Laws Chapter 93A, § 2, prohibits "unfair or deceptive acts or practices in the conduct of trade or commerce."   Since Chapter 93A was enacted in 1967, the Commonwealth's courts have continued to define the scope and substance of the conduct that the law prohibits.  

Misuse of Escrowed Funds Lands Contractor in Prison

In an apparent case of first impression, the Massachusetts Appeals Court has ruled that a building contractor who misuses his customers' escrowed funds incurs not only civil liability for breach of contract and the like, but also criminal liability for "fiduciary embezzlement" (M.G.L. c. 266, § 57).  In Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, decided October 21, 2013, the defendant contractor executed purchase and sale agreements with a series of customers that required the customers to pay deposits, and required the contractor to hold those deposits in escrow.  The defendant contractor acted as his own escrow agent.  However, instead of placing the escrowed deposits into a separate, interest-bearing bank account, the defendant deposited them into his general business operating accounts.  Worse, the defendant then used the money--before it had been earned--to pay himself and to pay various business expenses.  The defendant never built the houses he was hired to build, and he never returned the escrowed deposits to his customers.

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