How a Construction Defect Attorney Can Help You
Construction Lawyers for Homeowners
Business Lawyer on Retainer
Designed for businesses of all sizes, our “Business Lawyer on Retainer” access plan helps you get the advice and counseling your business needs, when you need it, for as little as $10 per day. That’s the price of two cups of (Grande Salted Caramel Mocha Frappuccino) coffee!
For a low, flat monthly or annual fee you can have the peace of mind of knowing that you have access to a trusted lawyer when you need one without having to worry about unpredictable billing. Highlights of our Business Lawyer on Retainer access plan include:
Unlimited emails on two (2) unique issues per month.
Up to two (2) scheduled phone calls per month with an attorney (30 minutes each).
Review of contracts prepared by others with a conversation to discuss important points (up to 5 pages — each additional page is $39).
Complimentary registered agent services.
One (1) annual review of your company’s critical business operations to identify any potential areas of concern or improvement.
20% discount on fees for all other services performed by the Firm.
All businesses have legal needs. Some more than others. Successful businesses address these needs before they turn into expensive problems. Wouldn’t it be great if you had a trusted lawyer you could turn to for legal advice and to help you through legal uncertainties in your moment of need?
And wouldn’t it be even better if you could get the timely advice you need without being “on the clock”? After all, it’s hard to pick up the phone to get timely advice when you are not really sure what that advice is going to cost you.
The plan is available for individuals as well.
Want to learn more about our Business Lawyer on Retainer access plan? Email Andy at andy@WymanLegalSolutions.com andy@WymanLegalSolutions.com or call us at (561) 361-8700!
Ask Andy: Construction Liens
Question (asked by a fellow attorney “Rob”): Hi Andy. I have a client with a small dispute with a contractor. The contractor recorded a lien but it is improper because it was definitely recorded more than 90 days after work was completed, and the pricing on the lien is heavily inflated (could be fraudulent). Best path is to just file a Notice of Contest of Lien, right? Then put the ball in the contractor’s court? Thanks in advance for any thoughts you can share.
Answer: Rob, your client has 4 choices. Three of them require your client to either spend money and/or be prepared to litigate.
First choice: Do nothing and see if the contractor files a suit within the one year time frame. If contractor fails to file suit timely then lien goes away automatically. This costs your client nothing but keeps a lien on their property for at least a year and potentially longer if suit is filed. Contractor would have to serve your client with a Contractor’s Final Affidavit at least 5 days before filing suit.
Second: Record the Notice of Contest of Lien. Contractor would then have 60 days to get that suit filed. This of course invites a lawsuit so they’d need to be ready to pay for and engage in litigation. If the suit is not filed within the 60 days then the lien is extinguished automatically. Contractor would have to serve your client with a Contractor’s Final Affidavit at least 5 days before filing suit.
Third: Your client can file a lawsuit under Fla. Stat. §713.21(4). This lawsuit requires the contractor to show cause why the lien should not either be enforced or vacated and cancelled of record. Basically the contractor would have to countersue your client to enforce the lien within 20 days of service of this lawsuit on them. Their failure to do so eliminates their lien. Contractor would have to serve your client with a Contractor’s Final Affidavit at least 5 days before filing suit. This is the most aggressive position to take and requires your client to also fund litigation. But it also requires the contractor to hire an attorney and pay for litigation as well.
Fourth: Post a lien transfer bond with the court to transfer the lien from the property to the bond. This gets the lien off the property but requires your client to come out of pocket with potentially a lot more money than they’ll want to. But if there is no compelling reason to remove the lien from the property then this is not a great idea.
A lot of contractors file a lien and intend to do nothing about it, especially if they don’t seem to know exactly what they are doing (and especially if it looks like the lien was not professionally prepared). In those instances the 3rd method is the most effective way to get the lien off the property most quickly.
Do you have a question you want to see answered in one of our emails? Send me an email to firstname.lastname@example.org.
3 Tips: How to Have a Home Improvement Project that Doesn’t Suck
We get so many calls from people who are struggling to get their home improvement project finished.
* The project is taking way too long.
* The job is costing way more than they thought it would.
* The work is sloppy and looks terrible.
* There’s a lien on their house from a company they’ve never even heard of.
Basically, they have a home improvement project that sucks.
Don’t let this happen to you. If you are thinking of starting a home improvement project, here are three tips on how you can have a home improvement project that does not suck:
1. Hire a contractor that doesn’t suck.
Here are the obvious things to look for:
* license, insurance
* lawsuits in the public records of your county and the counties on either side of yours
* licensing complaints (use this link to check): https://www.myfloridalicense.com/wl11.asp
And here’s what else you should know:
* Don’t always hire the cheapest person. If you get a really low price, that may be a sign that your contractor is missing something important, is desperate for work or inexperienced.
* Know what you want BEFORE you call a contractor. An educated consumer is the best consumer.
* If your contractor shows up late, is bad at listening or returning calls when he’s trying to sell you your job, then he will be even worse once you sign and pay him money.
2. Sign a contract that doesn’t suck.
* Make sure your contract contains everything the contractor promised. If it’s not in the contract, don’t expect that you will get it.
* If the contract contains something you don’t understand, call a lawyer!
* Make sure the contract has a clear and fair payment schedule. Try to hold as much of the money as you can until the project is finished and passes inspections.
* Require permits, even if it costs you extra.
3. Manage your project so it doesn’t suck.
* Pay attention to the work so that you are not paying for work that has not been done.
* Review every piece of mail you get that looks like an official notice of some kind.
* Obtain a lien release every time a payment is made.
* Get a contractor’s final payment affidavit before you make the last payment.
* Obtain a list of subcontractors and suppliers.
This is just some of the advice our experienced construction lawyers give our clients. Even better, our construction lawyers are available to help you have a construction project that doesn’t suck. Call us today at (561) 361-8700 to find out how.
Why You Need a Lawyer Case Study #2: What You Don’t Know Can Hurt You…
We have a client that is a professional engineer. We will call him Edgar. Edgar does great work. High quality. Reasonably priced. And Edgar is a sweetheart of a guy to deal with.
About 4 years ago, Edgar was sued along with about a dozen other contractors and subcontractors for some alleged construction defects on a big project. At that time, Edgar did not have a lawyer in his corner that he could discuss this lawsuit with. And that is unfortunate.
Because even though Edgar had insurance that could have paid for a lawyer to defend him and could have paid in the event Edgar is responsible for any of the defects, Edgar did not tell his insurance company about this lawsuit.
Edgar did not know that his insurance policy required prompt notice of claims.
Instead, Edgar wrote to the lawyer representing the property owner and explained in detail why Edgar was not responsible for the problems the owner was experiencing. Having heard nothing further, Edgar assumed the case was closed. Edgar did not know that it was a bad idea to have communications directly with the lawyer who represents somebody who is suing you.
The case was not closed.
And when Edgar and I met about two years later, he casually mentioned these court documents he kept receiving “even though I am out of the case”. So I looked into the case, and sure enough the case was still going strong. And Edgar was very much still “in the case”, even though no lawyer had been hired to look out for his interests during the first two years of litigation. Edgar did not know that a lawsuit needs a timely response with the court to avoid potentially being defaulted.
Edgar hired us to defend him in the lawsuit and also to obtain coverage for the claim from his insurance company. But by then it was too late.
Edgar did not know that by failing to promptly notify his carrier, he would lose all of the coverage for which he had been paying premiums for years.
Had Edgar had our business lawyer on retainer plan when he was sued, Edgar could have simply called us or emailed us the lawsuit and we would have helped him give the proper, timely notice to his insurance company. In fact, under our Business Lawyer on Retainer Plans, we offer to serve as your company’s Registered Agent so that we receive notice of all lawsuit and legal claims before you do. Edgar did not know about our Business Lawyer on Retainer plans.
Edgar did not know that this one simple mistake would end up costing him tens of thousands of dollars in attorneys’ fees and potential exposure to liability for the defects. Luckily for you, you receive these emails and you know that for as little as $10 PER DAY, you could have a trusted business and legal advisor in your corner to handle these issues for you when they come up. Call our office at (561) 361-8700 to sign up for our Business Lawyer on Retainer Access Plan today.
Why You Need a Lawyer: Case Study #1: Mitch Digs a Deep Hole
Mitch Digs a Deep Hole
We have a client we’ll call “Mitch”. Mitch lives in Pennsylvania but owns property in Palm Beach County. Mitch had some work done to his Florida condo. Did Mitch hire a lawyer to look at his contract before he signed it? No.
As with lots of improvement projects, this one did not go quite as Mitch had planned. Did Mitch hire a lawyer to find out how to properly put the contractor on notice of the problems? No.
The contractor finished the job but Mitch felt the job had mistakes. Mitch didn’t pay the contractor the last $8,000 under his contract. Did Mitch hire a lawyer to see if he had the right to withhold this payment? No.
The contractor stopped communicating with Mitch, filed a lien and sued Mitch to foreclose on the lien. Did Mitch hire a lawyer to represent him in this lawsuit? No.
Mitch then negotiated a settlement with his contractor’s attorney where Mitch was now going to pay $13,000 (because now he was also paying for the contractor’s attorneys’ fees) and he still was not getting the work fixed. Then Mitch signed a settlement agreement that did not include enough detail about the documents Mitch should have received in exchange for this payment. Did Mitch hire a lawyer to negotiate this settlement or to make sure that it was written so that he received the proper documentation he would otherwise have been entitled to? No.
Mitch then withheld payment of the agreed-upon $13,000 because he later realized he was not getting the right documents (even though Mitch didn’t properly negotiate for the right documents). Did Mitch consult with a lawyer before he withheld this payment? No.
Mitch was then in default of his settlement agreement and that entitled the contractor to obtain a final judgment against him and for the contractor’s attorney to claim more attorneys’ fees. The lawyer filed a motion for final judgment and now wanted a judgment for $15,000 and a final judgment of lien foreclosure. Mitch was going to lose his condo. Did Mitch call a lawyer when he now realized he was digging himself a deeper and deeper hole?
You are damn right he did. He called me.
Because Mitch had reached a written settlement agreement with the lawyer, we were unable to go back and undo it. By signing a written settlement agreement, Mitch obligated himself to pay more money than was necessary and lost his right to challenge the quality of the contractor’s work. However, I was able to get the lawyer to accept only an additional $400 instead of an additional $2,000 in fees for Mitch’s breach of the Settlement Agreement. We also got Mitch the documents he was entitled to.
There were at least 6 opportunities for Mitch to have hired a lawyer that would have saved him money. Had Mitch hired a lawyer at the first (or even second) opportunity, his condo would not still need more work.
Teaming up with a knowledgeable lawyer BEFORE problems arise saves money and relieves stress. If you are considering a home improvement project, call us at (561) 361-8700 so one of our construction attorneys can properly protect you.
Who is YOUR lawyer?
It’s a simple question, really. I’m sure you can tell me who your doctor is. You could even tell me who cuts your hair. But you can’t tell me who your lawyer is because you don’t have one. Do you?
Now more than ever, having a trusted advisor is so critical. A lawyer shouldn’t just be someone you turn to AFTER a problem arises. As a lawyer, the most value I can provide you is to be there to guide you away from trouble before it hits you.
If you do not have a lawyer you can turn to for timely, valuable advice when you really need it, it is for one of three reasons:
You don’t understand why you need a lawyer.
Here’s why you need a lawyer….
A lawyer guides you through all of life’s uncertainty and in your moments of greatest need.
A lawyer empowers you to take control when you are worried about planning for your future or your children’s future.
A lawyer eases your anxiety when you are concerned about this economy and your finances.
A lawyer is a trusted advisor you can call when you know that making the “wrong” decision will be expensive.
A lawyer has your back and helps you anticipate problems before they arise.
A lawyer is your quarterback when solving problems.
You don’t know any lawyers you can trust.
Every successful person gets guidance from people they trust. I bring my perspective as a father, son, and business owner to all of my clients’ legal problems so I can give honest, straightforward, and valuable advice. But don’t just take my word for it. Read these reviews written by actual clients:
You think you cannot afford a lawyer.
With our Lawyer on Retainer plans, having a lawyer you can consult with on all of life’s problems is available to everyone and to every business for a fixed, low monthly fee. Call us at (561) 361-8700 to learn about which one of our plans is best for you.
So, the next time you find yourself needing to make an important decision, you can say “First, I need to speak with MY lawyer!”
DON’T PAY TWICE
When we are not helping clients with their business issues and insurance claims, the rest of our work involves construction issues and disputes.
Lately we have been contacted by numerous homeowners who have paid their contractors for home improvements only to learn that the contractor did not pay for materials. These clients now have liens on their property and the material suppliers are looking to the property owners to get paid.
Unfortunately, if these clients did not pay their contractor the “right” way, they’ll have to pay twice.
Home owners just do not know that there is a right way and a wrong way to pay contractors.
The “right” way protects the homeowner. The “wrong” way exposes the home owner to potentially paying twice.
How do you make payments the right way?
Know who is working on your job. Keep an eye out in the mail for something called a Notice to Owner (NTO). Subcontractors and material suppliers will be sending you a NTO to alert you they are working on your job. You also have the right to ask your contractor for a list of subcontractors and suppliers. Make this request in writing and via certified or registered mail.
Obtain Lien Releases every time you make a payment. Every time you make a payment to the contractor, make sure the contractor gives you a lien release. Also have the contractor obtain lien releases from every company or person who sent you a NTO.
Make joint payments if necessary.
If the contractor tells you he cannot pay his subcontractors or suppliers without receiving your money, then arrange to make your payment jointly to both the contractor and the sub or supplier to obtain the releases.
Most importantly, before making a final payment, obtain a contractor’s affidavit. Before making your final payment, tell your contractor you want a “Contractor’s Final Payment Affidavit”. Although you are entitled to it, a contractor will generally not give you one unless you ask for it. In the affidavit, the contractor has to tell you what subs or suppliers remain unpaid and by how much. That way, you can direct your payments properly and make sure you receive final lien releases from everyone involved.
Florida’s lien laws are very technical and the slightest mistake can cost homeowners big money. If you are going through a home improvement project, you should call us to make sure you are making payments the right way.
PPP Odds and Ends
The past few weeks has seen a flurry of PPP news. We wanted to make sure you didn’t miss out on some of the more important developments:
PPP Loan Application Deadline Extended
June 20, 2020 was the original deadline for your PPP application. With $130 Billion still left in the program, the government extended the PPP loan application deadline to August 8, 2020. If you have not applied for the PPP loan, you still have time. We can introduce you to a lender if you need one. If you have already received a PPP loan, you cannot receive a second PPP loan.
Some PPP loans Extended to Five Year Payback Period Instead of Two
If your PPP loan received an SBA loan number on or after June 5, 2020, the loan has a five-year maturity. If your PPP loan received an SBA loan number before June 5, 2020, the loan has a two-year maturity, unless the borrower and lender mutually agree to extend the term of the loan to five years. Your promissory note for your PPP loan will state the term of the loan.
The SBA is Not Yet Accepting Loan Forgiveness Applications
Some borrowers have already spent their PPP loan funds and are interested in applying for forgiveness. Contact your lender. Some Lenders are accepting Loan Forgiveness Applications. But lenders cannot yet submit them to the SBA. Getting your forgiveness application in early may get your loan forgiven more quickly later. However, you should wait to submit that loan forgiveness application until the process is a bit more developed. Until the SBA is ready to accept the forgiveness applications, the applications themselves, and the rules, are subject to change. You may just end up having to redo your loan forgiveness application or you may miss out on some important changes.
If you have any questions on any of the PPP developments, call us at (561) 361-8700.
In the last ten days, the SBA revised the PPP loan forgiveness applications and updated the instructions. There is now a Form “3508EZ” available for some borrowers which greatly simplifies the loan forgiveness process:
* PPP Forgiveness Application Form 3508EZ <PPP EZ application>
* PPP Loan Forgiveness Application Instructions <PPP EZ application instructions>
How do you know if you can use this “EZ” form? If any of these three statements apply, then the EZ form is for you:
1. The Borrower is a self-employed individual, independent contractor, or sole proprietor who had no employees at the time of the PPP loan application and did not include any employee salaries in the computation of average monthly payroll in the Borrower Application Form.
2. The Borrower did not reduce annual salary or hourly wages of any employee by more than 25 percent during the Covered Period or the Alternative Payroll Covered Period compared to the period between January 1, 2020 and March 31, 2020; AND The Borrower did not reduce the number of employees or the average paid hours of employees between January 1, 2020 and the end of the Covered Period.
3. The Borrower did not reduce annual salary or hourly wages of any employee by more than 25 percent during the Covered Period or the Alternative Payroll Covered Period compared to the period between January 1, 2020 and March 31, 2020; AND The Borrower was unable to operate during the Covered Period at the same level of business activity as before February 15, 2020, due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020 by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards of sanitation, social distancing, or any other work or customer safety requirement related to COVID-19.
Here is what is clear: You can use the EZ form if you are self-employed, an independent contractor or sole proprietor with no employees.
What’s not so clear? The third statement. Never before was the concept of not “operating at the same level of business activity” included in the forgiveness process. Unfortunately there is no guidance yet as to how “business activity” will be measured or evaluated.
Do you have questions about the PPP loan forgiveness process? Or are you still in need of a PPP loan? Then call us today at (561) 361-8700 and schedule a complimentary consultation with one of our attorneys.
What is a Limited Liability Company and Why Do You Need One? (Hint: It’s in the Name…)
Darryl lost his job recently when his employer cut its workforce in half.
And he couldn’t be happier.
He’s ready to scratch his entrepreneurial itch and realizes that there is no such thing as a “secure” job anymore. This was the push he needed to finally do it. Darryl is ready to start his own business.
Darryl knows that there are many different issues to consider when choosing the best business entity. His biggest concern is protecting himself from liability.
A Limited Liability Company (LLC) protects owners by limiting personal liability. Debts and obligations of the LLC belong solely to the LLC.
Darryl’s personal assets are protected from any of the LLC’s debts and liabilities.
In many ways, the LLC provides the same liability protection found in corporations. However, a LLC also provides these advantages:
1. Fewer formalities than with a corporation (for example, an LLC is not required to have annual meetings or keep written minutes of its proceedings).
2. Pass-through taxation (the LLC is not required to file its own tax return).
3. Fewer restrictions on ownership.
Bottom line: a Limited Liability Company (LLC) provides substantial flexibility. It combines the liability protection of a corporation with the tax treatment of a sole proprietorship or partnership.
For these reasons, Darryl decided a LLC is right for him. At Wyman Legal Solutions, we love helping people like Darryl realize their dreams of business ownership. We help clients choose the proper corporate structure and help them make sure it is set up properly.
Call us today to help you set up your Florida LLC! (561) 361-8700
It’s all about FLEXIBILITY
On June 5th, the Paycheck Protection Program Flexibility Act (PPPFA) was passed. The PPPFA addresses some of the problems with the practical application of the PPP loan program. The biggest concern we hear from business owners is that they’re receiving the money before their businesses reopened in earnest. This meant using the PPP funds to pay workers to basically stay home.
Here is how the PPP loan program was changed to address this concern:
First, the PPPFA extends the time period to spend the PPP funds from 8 weeks to 24 weeks. This gives most businesses until almost the end of 2020 to use the funds on forgivable expenses. Since most businesses received loans equal to 2.5 months of payroll, this additional time should result in most loans being completely forgiven. Also, this let’s those businesses who remained closed longer use the funds to pay employees after they’ve returned to work..
Second, the PPPFA lowered the amount businesses are required to spend on payroll to earn full loan forgiveness from 75% to 60% . Businesses who were closed longer than others could benefit from using more funds for rent and non-payroll expenses.
Finally, businesses now have until the end of 2020 to rehire workers to meet “rehiring” requirements. Originally businesses needed to demonstrate they were back to full employment by June 30, 2020. The extra 6 months again benefits businesses that need longer to ramp up their operations.
There were some additional changes, such as extending the payoff of unforgiven loan funds from 2 years to 5 years.
Also, the first payment under the loan program is now due 6 months after the SBA makes a determination on your forgiveness application.
If you have any additional questions about your unique circumstances and PPP loan program, please call us at (561) 361-8700.
Handshakes are so 2019…. (and not for the reason you think)
Are you ready for the “Footshake” or the “Elbow Bump”? According to a recent USA Today article, the future of the handshake <https://WymanLegalSolutions.us18.list-manage.com/track/click?u=b473ae4fa843fc144f2b4b0be&id=accf74fff4&e=4beffc6fe7> is in serious doubt because of Coronavirus.
So, is Coronavirus the reason that you should consider making handshakes a thing of the past? NO!
I truly believe we will be shaking hands again one day. However, one thing you should NEVER do with a handshake again is use it as a substitute for a written contract!
Doing a deal on a handshake is absolutely something that deserves to be dead and buried forever.
I cannot tell you how many times I have had a potential new client call me about one of these “handshake” agreements:.
“I loaned money to my brother-in-law without getting him to sign a promissory note and he hasn’t paid me back.”
“We hired a contractor to do work on my house without a written contract and now he’s charging me twice as much as what we agreed to.”
“I invested money into my friend’s business without a written contract and I have never seen a return on my investment. And now she won’t return my calls.”
Are oral contracts enforceable? Technically, yes (most of them anyway….). However, when contracts are not put into writing and signed by the other person/company, then proving the terms of the “agreement” in court becomes very difficult. It is also much more expensive in terms of attorneys’ fees to prove an oral contract. Just have an attorney put the agreement into writing in the first place! It’ll save you money!
Not only do you want your contracts to be in writing, but make sure that they contain important provisions, including:
Attorneys’ Fees Clauses <https://WymanLegalSolutions.us18.list-manage.com/track/click?u=b473ae4fa843fc144f2b4b0be&id=77cad4c28a&e=4beffc6fe7>
Integration Clauses <https://WymanLegalSolutions.us18.list-manage.com/track/click?u=b473ae4fa843fc144f2b4b0be&id=b8a491dea1&e=4beffc6fe7>
The bottom line is that the best time to consult with an attorney is before you enter into a contract. Clients of Wyman Legal Solutions know they should always consult with us before lending any money or signing any contract. And for those clients who are in our Business Lawyer on Retainer program, all of those consultations are included in their low monthly fee.
Getting a consultation with us is easy. Simply call (561) 361-8700 and ask for our Director of Client Relations, Jen. Jen will obtain some information from you and will schedule you for a complimentary call with me.
PPP Loan Forgiveness Application Help
We’ve said this before about PPP loan forgiveness, and we’ll say it again:
Getting your PPP loan was the EASY part. Getting your PPP loan FORGIVEN is going to be HARDER.
SBA Releases PPP Loan Forgiveness Application Form
Hot off the presses, the SBA released the PPP Loan Forgiveness Application Form. SBA Form 3508 is the 11 PAGE APPLICATION (including instructions) you must complete and submit to your lender for forgiveness of your PPP loan. You can find the application here: PPP Loan Forgiveness Application.
One thing is clear though. This application has changed the forgiveness rules. Again.
For example, we’ve been told from the beginning that the “Covered Period” for calculating your forgivable payroll and expenses is the 8 week period following your receipt of your PPP funds. But, there is now an “Alternate Payroll Covered Period”. You can opt to use the Alternative period for some, but not all, of your forgivable expenses.
What should you submit to your lender when you apply for forgiveness?
At the very least, you will need to submit the following documents:
- The PPP Loan Forgiveness Calculation Form with certifications.
- PPP Schedule A (showing all payroll and non-payroll compensation and Full Time Equivalency (FTE) reduction calculations).
- Documentation verifying eligible expenses.
- Documentation showing your average number of FTE over multiple periods of time.
To complete Schedule A, the SBA provides you with a worksheet to complete. You do not send the worksheet to your lender. But you must keep it as part of your records for six years.
Our team is combing through the application to be ready to assist you with your loan forgiveness application. This application is not for the faint of heart.
Get the help your business needs and make sure your PPP loan is forgiven.
Call us at (561) 361-8700 to schedule a complimentary consultation.
The New PPP Rule Change Regarding Employee Headcount That Every Employer Needs to Know.
Earlier this week the SBA made a change to the PPP loan forgiveness rules. You may be asking yourself: How is that news? They’ve been changing the rules almost every day! Well, this rule HELPS small businesses get loans forgiven if their employees do not want to come back to work.
The original PPP loan forgiveness rules penalized employers who have a reduction in work force or do not hire back employees they recently laid off. If a small business reduced its number of employees then its loan forgiveness could also be reduced. The question we heard a lot from business owners was: Well, what if my employee does not want to come back to work? With the federal unemployment assistance enhancing state unemployment, some employees are making more money from unemployment than they did while employed!
The SBA recently provided this guidance to borrowers:
Question: Will a borrower’s PPP loan forgiveness amount be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the
Answer: No! The SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that to qualify for this exception:
1. The employer must make a good faith, written offer of rehire, and
2. The employee’s rejection of that offer must be documented by the employer.
Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.
Do you have other questions about PPP loan forgiveness? Call us at (561) 361-8700 today!
PPP Loan Forgiveness – What You Need to Know and Do
This past week saw a lot of PPP loan applications approved by the SBA. This means that small businesses will be receiving their PPP loan money in the next ten days. So, what do you need to know and do for this loan to be forgiven? Updated guidance is coming out daily, but here is what you should be doing based upon the information that is presently available:
Updated guidance is coming out daily, but here is what you should be doing based upon the information that is presently available:
KNOW THIS: When evaluating loan forgiveness, your lender will look at the eight (8) week period starting with the day you get your money.
DO THIS: Keep track of your spending during this time. You may want to deposit your PPP money into a separate account to make record keeping easier. Only spend your PPP loan money on forgivable expenses. This includes only payroll costs (including salary, wages, health insurance premiums, retirement benefits), rent payments, interest on mortgages and certain debt, and utility payments.
KNOW THIS: Loan forgiveness may be reduced if you do not spend at least 75% of it on payroll costs. You will have to prove that non-payroll expenses did not exceed 25% of PPP paid expenses.
DO THIS: Keep all documentation that supports or proves how you spent your PPP loan money, such as Bank Statements, Payroll Reports, Lease, Loan Payment Documents, Utility Bills and EIDL documentation (if you received a EIDL “advance” as well). Each lender may have its own additional documentation requirements, so check with your lender.
KNOW THIS: Loan forgiveness may be reduced if you do not maintain the same number of employees and overall payroll that you had on February 15, 2020.
DO THIS: If you let anyone go after February 15, 2020, you have until June 30, 2020 to rehire employees (or hire new employees) to restore both the number of employees and overall payroll to your February 15th level. Your failure to do so will reduce your loan forgiveness amount. But you may not want to rehire someone just for the sake of getting this loan forgiven. Make sure rehiring employees furthers your business plan. Also, the SBA has not given very clear guidance yet on this, so be sure to stay on top of any further issued guidance.
KNOW THIS: You will have ninety (90) days from the end of your 8 weeks to submit a loan forgiveness application to your lender, and your lender will have sixty (60) days to evaluate your forgiveness application.
DO THIS: Expect that you may not know whether and to what amount your loan will actually be forgiven for about six months. The terms of your PPP loan dictate that the money you are borrowing (to the extent not forgiven) must be repaid within two years (at 1% interest per year) and do not require you to make any payments for the first six months.
KNOW THIS: The more disorganized your record keeping is, the more unlikely it will be that your loan will be forgiven.
DO THIS: Contact us to get help with planning and organizing BEFORE you get your money. We can help.
DO’s and DON’Ts of New Round of PPP Funding
By the time you are reading this, it is likely the government has announced a new round of PPP loan program funding. If not, then that is happening imminently. If your small business was shut out of the first round of funding, then you now have a 2nd chance. Here are some immediate DO’s and DON’Ts:
DON’T go back to the big bank you applied to the first time and resubmit an application: If that big-box bank has your loan application, leave it alone. Submitting another application to the same bank will cause massive confusion.
DO send an application through a smaller, local bank, credit union or non-bank SBA lender. There is no penalty for submitting more than one application. Whoever “rings the bell” for you first with the SBA will be your lender. Click this link to learn how we can help you find a lender:
Find a Lender https://go.wymanlegalsolutions.com
DON’T wait any longer to fill out your PPP loan application and to get the documents you need from your accountant and/or payroll provider.
DO track down the following documents and save them to a folder on your desktop to be ready to submit your PPP loan application when the process reopens:
* Payroll Register for calendar year 2019
* Payroll Registers for each pay period during January & February 2020
* Form 940 for calendar year 2019
* Form 941 for January – March 2020
* A list of the names of employees who were on payroll as of February 15, 2020, identifying who
* resides in the US and who does not.
* Copy of Driver’s License for each person who owns 20% or more of the company that’s applying for the Payroll Protection Loan.
* Copy of your company’s Articles of Incorporation
DON’T feel like you have to do this yourself.
DON’T guess at how to fill out the loan application.
DON’T miss out on this round of funding.
DO click this link and find out how we help you apply for the loan (and loan forgiveness) you need: https://go.wymanlegalsolutions.com.
Paycheck Protection Program FAQ’s
We have been on the phone with a lot of small business owners and independent contractors discussing their Paycheck Protection Program (PPP) loans. Here are a few of the questions we are hearing most often:
Question: My bank won’t take an application from me. So where can I apply?
Answer: There are essentially 3 options: (1) large bureaucratic banks, (2) community banks and credit unions, and (3) non-bank SBA lenders. It’s a shame that some of the “too-big-to-fail” banks are choosing only to do business with their “better” customers. A lot of business owners are left feeling invisible and unimportant. We have been able to introduce clients to credit union lenders that do not require a pre-existing relationship. And we soon expect to have a direct line to one of the largest national, non-bank SBA lenders in the country.
Question: As a business owner, can I include the distributions I give myself in my calculation of “payroll costs” when determining my “average monthly payroll” on my PPP loan application?
Answer: No – unless you paid payroll taxes or self-employment taxes on those distributions. However, most small business owners are not set up that way.
Question: As an employer, are taxes included in “payroll costs” when calculating my “average monthly payroll” on my PPP loan application?
Answer: Per the U.S. Treasury: “[P]ayroll costs are not reduced by taxes imposed on an employee and required to be withheld by the employer, but payroll costs do not include the employer’s share of payroll tax. For example, an employee who earned $4,000 per month in gross wages, from which $500 in federal taxes was withheld, would count as $4,000 in payroll costs. The employee would receive $3,500, and $500 would be paid to the federal government. However, the employer-side federal payroll taxes imposed on the $4,000 in wages are excluded from payroll costs under the statute.”
Question: What time period should I use to determine my payroll costs to calculate my maximum loan amount?
Answer: If you were in business throughout all of 2019, and your business is not “seasonal”, then you have a choice: Use your payroll data from the previous 12 months (e.g., April 2019 through March, 2020) or from calendar year 2019 (January, 2019 through December, 2019). Although those numbers may be very similar, it could make a difference in the amount you are eligible to borrow if you took on additional employees in late 2019 or early 2020. For seasonal businesses, use your average monthly payroll from February 15, 2019 through June 30, 2019. If you were not in business from February 15, 2019 to June 30, 2019, then payroll costs for January 1, 2020 through February 29, 2020.
Information is changing daily. We are staying on top of these developments as best we can so we can bring them to you in a timely and valuable way. Please call us with any questions or assistance with your PPP loan application.
RELAX. You’ll Get Your Money.
The Government’s Paycheck Protection Program (PPP) Loan application period opened April 3, 2020 to a loud THUD. Not even a week later….
…the SBA keeps changing the document requirements and application.
…Wells Fargo has officially closed their doors and said they’re not accepting any more applications.
…Bank of America said they are only taking applications from businesses who already have business loans with them.
The landscape is a mess. Business owners are frantic and in the dark. Changes are happening daily. Anyone who tells you they KNOW what’s going on is lying to you.
The process is going to be clunky and painful, especially for those who decided they were going to apply on Day 1 at all costs. For those people, they’ll be the ones experiencing the pain of brand new systems being implemented by overwhelmed people who are trying to process loans without critical SBA guidance. The banks will be cutting their teeth on this first wave of applicants. I recommend that you try to avoid being in the first wave that gets cut-down. You don’t want to be the first soldier up the hill…
And REMEMBER – getting the money is the easier part. Getting it FORGIVEN will be where people will regret the choice they made about who to go on this journey with. If you think its crazy out there now, imagine what the landscape will be when the loan FORGIVENESS applications are being submitted.
You can only let one lender submit your application. So whoever you deal with for the loan, is who you will deal with when you apply for forgiveness – for better or for worse. And if your loan was processed on incomplete information because of FOMO (fear of missing out), then it will be that much harder to get your loan forgiven under the PPP loan program.
The current deadline to apply is June 30th. There’s $350 Billion of guaranteed loan funds. Less than 2% of that has been committed. And Mnuchin already said that when the funds run out, they’ll get more.
Whether you go to a big bureaucratic bank, a small community bank or a non-depository SBA lender, you will get your money and you will get your loan forgiven (if you spend it correctly). But by working with a professional — a lawyer used to working with clients under pressure and in times of stress – the process will be more manageable. You don’t need to do this all yourself.
At Wyman Legal Solutions, we can help by giving you advice, keeping you calm and by introducing you to a SBA lender that is professional enough to be waiting to take applications until officials finalize the guidance so they can begin processing loans and putting money into the hands of borrowers.
Don’t submit your application this week. You won’t miss out. Call us to help you.
RELAX. You’ll get your money.
The CARES Act and Your Small Business
With the US Government’s CARES Act hot off the presses, we are identifying massive opportunities for small business owners who do not panic. When (not if) we get past the COVID-19 pandemic, a surge of business will be created in just about every industry. For smart, confident, responsible business owners, the government has just handed you the tools to make sure that at the very moment that the business surge arrives, you will be primed to take advantage.
Unfortunately, those tools are mired in an 880-page document that reads like an insurance policy on steroids. Fortunately, we’ve taken the essential small-business components of the CARES Act and compiled a team of professionals that are ready to help navigate your small business through the Legal, Financial and Human Resources hoops that stand in the way of your business getting the assistance it needs – not just to survive, but to thrive!
* Are you concerned about cash flow?
* Do you want to keep your valuable employees?
* Do you care about your clients?
* Do you want to be poised to take your competitors’ customers or clients when the smoke clears?
If you answered “yes” to any of these questions, then take these 2 simple steps to begin coordinating your company’s pandemic response and growth strategy:
- Call (561) 361-8700 to schedule a consultation;
- Allow us to personalize a plan that fits your budget and goals, including:
* Professional assistance applying for the Payroll Protection Program Loans <https://WymanLegalSolutions.us18.list-manage.com/track/click?u=b473ae4fa843fc144f2b4b0be&id=794cb9d7bb&e=4beffc6fe7> or other programs the government has made available under the CARES Act;
* Access to one of our firm’s Business Lawyer on Retainer programs to answer your questions during these uncertain times as they arise without being charged for every phone call and email;
* Counseling and Guidance through Human Resource issues;
* A strategic evaluation of your company’s business plan, budgets, financial controls, policies and procedures
Your actions at this moment…right here…right now… will define your company’s success for the next decade and beyond.
Are you ready?
CARES Act Small Business Paycheck Protection Program Loans
CARES Act Paycheck Protection Program Loans highlights for small businesses. Official Senate FAQ’s where this information was obtained available right here:
Paycheck Protection Program (PPP) Loans: The program would provide cash-flow assistance through 100 percent federally guaranteed loans to employers who maintain their payroll during this emergency. If employers maintain their payroll, the loans would be forgiven, which would help workers remain employed, as well as help affected small businesses and our economy snap-back quicker after the crisis.
PPP has a host of attractive features, such as forgiveness of up to 8 weeks of payroll based on employee retention and salary levels, no SBA fees, and at least six months of deferral with maximum deferrals of up to a year. Small businesses and other eligible entities will be able to apply if they were harmed by COVID-19 between February 15, 2020 and June 30, 2020. This program would be retroactive to February 15, 2020, in order to help bring workers who may have already been laid off back onto payrolls.
Loans are available through June 30, 2020. See the Full version of the CARES Act here.
WILL YOUR BUSINESS INTERRUPTION INSURANCE COVER INCOME LOST FROM CORONAVIRUS?
Many businesses have seen, or are expecting to see, a loss of income or an increase in expenses due to the slowdown of business activities associated with the spread of COVID-19. Are these losses or expenses covered by your business interruption insurance?
Business interruption insurance coverage is a part of most commercial property insurance policies. It covers loss of business income if there is “direct physical loss or damage” to your insured business property. And then, only if the physical damage was caused by a covered peril <https://WymanLegalSolutions.us18.list-manage.com/track/click?u=b473ae4fa843fc144f2b4b0be&id=ae3e7e187f&e=4beffc6fe7> . An interruption in business not caused by physical damage to your property is usually not enough to trigger coverage. Also, many policies specifically exclude losses claimed from viruses and epidemics.
However, some policies contain additional coverage not seen in the typical policy. For example, some policies provide coverage if a “civil authority” prohibits access to your business premises as a result of property damage elsewhere. Other policies provide coverage if a critical supplier cannot provide you with the supplies you need to carry out your business, even if your property did not suffer direct damage. Again though, these coverages are generally only triggered if physical damage occurs somewhere.
Although losses from viruses and epidemics are usually specifically excluded under policies, insurance has evolved over the years to provide specialized coverage options for almost any imaginable circumstance. As with all business insurance coverage questions, your specific industry, your policy language and the circumstances of the loss will dictate if you can get reimbursed for the interruption of your business.
If you believe that your insurance should be responsible for your COVID-19 related business losses, call our office to speak with our experienced business interruption insurance attorneys today.
Insurance Case Study #3: Eduardo Gets a New Roof
Our Client Eduardo lives in Fort Myers. Eduardo’s roof was damaged in Hurricane Irma. Eduardo’s insurance company agreed that covered damage occurred from the Hurricane but paid him nothing. According to his insurance company, the damage did not exceed his deductible. Eduardo was angry, and he called us.
Although Eduardo’s roof damage was not widespread, we brought in a roofing engineer to evaluate his roof. The engineer concluded that the roof damage could not be repaired because the roofing tiles on Eduardo’s roof were no longer manufactured. As a result, any replacement tiles would not match as required by Florida law. We disputed the insurance company’s conclusion with a professionally prepared report. We demanded that the insurance company pay Eduardo to replace his entire roof. And they did.
At Wyman Legal Solutions our team has the resources and knows the laws that make recoveries like this possible for our clients. Contact us today so we can help turn your property damage from “sudden and unexpected” into an insurance claim that is COLLECTED!
Insurance Case Study #2: Margie’s Leak Under Her Slab
Our Client Margie began noticing loose floor tiles and discolored grout lines in her living room. Margie had a pipe leak under her home’s concrete slab. Margie opened up a claim with her insurance company. The insurance company’s adjuster came out to her house and estimated $4,200 in damage. After her $2,500 deductible, the insurance company paid her $1,700.
$1700? That wasn’t even enough to pay the plumbers to temporarily reroute her water line so she could at least have running water in her bathroom!
Margie hired us to get her the money she deserved, and we went to work. First, we hired a loss consultant and cost estimator to thoroughly inspect her property to properly value her claim. Her “$1,700” claim was actually worth almost 6 figures!! Then we engaged an appraiser and put the claim through the insurance policy’s appraisal process. At the end of the day, Margie’s claim was valued at over $85,000, which provided her with the money she needed to repair and rebuild her damaged home.
At Wyman Legal Solutions we have the resources and professional relationships that make recoveries like this possible for our clients. Contact us today. Let us turn your property damage from “sudden and unexpected”, into an insurance claim that is COLLECTED!
Insurance Case Study #1: Jason and his Mismatched Granite
We recently worked with a client in Davie named Jason. Jason had a pipe burst under his kitchen sink. The damage required removal of his kitchen cabinets. To do that, his granite countertop needed to be removed first.
While removing his granite backsplash, Jason’s contractor cracked it. It was damaged to the point that it could not be repaired. And due to the unique nature of the stone, the piece could not be replaced to match the rest of the pattern. The insurance company refused to pay Jason for his broken granite because it was damaged by Jason’s contractor. Jason’s granite, except for about a four-foot length of cracked backsplash was otherwise fine.
Eventually the insurance company stopped returning Jason’s calls. Faced with having a mismatched, cracked or missing granite backsplash in his kitchen, Jason got fed up and called us. We were able to get Jason’s insurance company to pay him over $12,000.00 to replace ALL of the granite in his kitchen (including the granite on a separate kitchen island) with entirely new granite. Plus, the insurance company paid our attorneys’ fees.
At Wyman Legal Solutions our team has the resources and knows the laws that make recoveries like this possible for our clients. Contact us today so we can help turn your property damage from “sudden and unexpected” into an insurance claim that’s COLLECTED!
Insurance Myth #3: The Insurance Company’s Field Adjuster Will Make Sure I am Paid for All of My Damage
After you notify your insurance company about your claim, they will send someone to your property to look at the damage. This person is called a “field adjuster”. The field adjuster is usually a friendly person. His job is to analyze your damage and gather information. The field adjuster then puts this information into a report and submits it to the insurance company.
By being friendly and usually sympathetic, it may feel like the field adjuster is “on your side”. He is not. The field adjuster will usually say things that make you think he wants to maximize your claim. He does not. This person has no authority to speak about whether your claim is covered. And he has no authority to tell you whether the insurance company will pay you anything at all. The field adjuster acts as your insurance company’s eyes and ears. He will tell the insurance company things you tell him that might be used later to reduce or deny your claim. They are very much on the side of your insurance company.
Insurance companies have professionals on their side looking out for their best interests. Who is looking out for yours? At Wyman Legal Solutions our team has dealt with hundreds of insurance claims and we advocate for you on your insurance claims. If you or a loved one have experienced sudden or unexpected damaged to your home, contact us today.
Insurance Myth #2: If I cash my insurance company’s initial payment check, then I cannot continue to fight for more money.
We get this question all the time. A client reports a claim to their insurance company and the company issues a small check that is not enough to pay for the damage. The client then contacts us to help get them more money. Their first questions is, can I cash the small check I’ve already received? The answer is “yes”, unless the insurance company conditioned the check on a release of the claim – which would be a bad faith and improper insurance claim practice.
Insurance companies are OBLIGATED to pay you any amounts that are uncontested. And they are required to do so unconditionally. Meaning, they must pay you what they’ve determined you are owed without any strings attached. You then have the right to supplement the claim with more information and evidence of your damages to obtain an additional, higher payment.
If your insurance company tries to get you to sign a release, then DO NOT CASH THE CHECK. DO NOT SIGN THE RELEASE. AND CONTACT US IMMEDIATELY. This is a bad faith insurance practice by the insurance company. Our insurance claim attorneys will get you that money without any strings attached. And we will help get you the rest of the money you deserve.
Contact us today if you’ve experienced damage to your home or suspect that your insurance company has operated in bad faith.
Insurance Myth #1: My homeowners insurance covers anything that could possibly damage my home.
If you have not had a reason to make a property damage insurance claim before, then you probably assume that if you pay your premiums, then your home is covered against anything or everything that could possibly happen.
You would assume wrong….
Your insurance policy is a contract. In exchange for your payments (called premiums), your insurance company promises to make payment to you for your damaged property…BUT ONLY IF your damage was created by a “cause of loss” that is covered under the policy. But what is a covered “caused of loss”?
A covered “cause of loss,” is a “peril” that your insurance company insures you against. However, different policies cover different perils. There are two basic kinds of property insurance policies:
- The “named perils” policy (also known as a “broad form” policy). A “named perils” policy will pay for property damage that results ONLY from the exact list of perils (causes of loss) listed in the policy. The typical named perils policy contains the types of losses that you would expect to be covered (fire, lightning, windstorms, hail, explosions, non-flood water damage and some others). However, even with a “named perils” policy, you’ll see that some insurance companies add or exclude or limit coverage for certain typical named perils. If a type of peril is not specifically named, then it is not covered.
- The “all risks” policy (also known as a “special” form policy). An “all risks” policy on the other hand covers your home against “all risks” (i.e., everything) that can damage it EXCEPT for perils that are specifically listed as EXCLUDED by the policy. Typical excluded perils include flood, earth movement and pollution. If a peril is not specifically identified on a list of exclusions, then it is a covered “cause of loss”. All risk policies tend to be more expensive because they cover more risks.
If you’ve experienced sudden or unexpected damage to your home, contact us today to evaluate your coverage.
Avoid Having Your Water Damage Claim Denied!
Water damage claims are among the most frequent claims made under homeowners insurance policies – especially in Florida. But the coverage provided for water claims can be confusing. When might your claim for water damage be covered or denied?
Insurance is intended to cover “sudden and accidental” damage – think storm damage or a pipe burst. Homeowners insurance will generally not cover “seepage” or damage that occurs gradually over a long period of time – think a slow water drip from the pipes inside your walls. If the reason for your damage is not sudden and accidental, then your water damage claim may be denied. Insurance companies are often rewriting their policy coverage terms, sometimes yearly, to narrow the types of water damage losses they cover.
So what can you do about it?
First, do business with an independent insurance agent who represents more than one company. Independent agents can help you find more coverage options and the best insurance for your needs. We can introduce you to a trusted independent agent. You can also try to find one on your own by looking here: PIA for Florida or The Big I.
Second, be proactive by inspecting your home for signs of water damage and by maintaining your home regularly. Also, pay attention to any mail or emails you receive from your insurance company at your annual renewal for changes to your insurance coverage.
Finally, when a claim arises, make sure you consult with an attorney who is experienced in handling water damage claims for homeowners. At Wyman Legal Solutions we help people who have suffered sudden and unexpected property damage and put them back into their homes and businesses. We are passionate about helping our clients level the playing field with their insurance companies so they can get the money they deserve out of their insurance claims. Contact us today for help.
Do You Have the Right Homeowners Insurance?
At Wyman Legal Solutions, we help people who have suffered sudden and unexpected property damage and put them back into their homes and businesses. We are passionate about helping our clients level the playing field with their insurance companies so they can get the money they deserve out of their homeowners insurance and business insurance claims.
We believe that not insuring your home, business of other property is a major mistake. Yet, we have been contacted by countless numbers of people who either did not get insurance or did not get the RIGHT insurance. What does homeowners insurance cover?
A typical homeowners insurance policy includes the following coverages:
- “Dwelling” coverage: This is the coverage that protects your home’s structure and everything built into it from physical damage.
- “Other Structures” coverage: This coverage insures detached structures on your property such as a detached garage, an in-ground swimming pool or a fence.
- “Personal Property” coverage: This coverage covers your personal belongings like furniture, clothing and electronics.
- “Loss of Use” coverage: Also sometimes called “Additional Living Expense” or “ALE” coverage, this coverage compensates you for expenses you incur if your residence becomes uninhabitable due to damage from a covered cause of loss. If the dwelling is a rental property, this coverage can compensate you for lost rental income during the period when the home is uninhabitable.
- “Personal Liability” coverage: This coverage protects you from claims made by other people who might get injured on your property (and can also cover you for injuries you cause outside of your home);
- “Medical Payments” coverage: This coverage will pay for medical expenses of people injured on your property.
Do you have questions about your homeowners insurance policy, or whether your home, business, or property is protected? If so, please contact us right away and we’ll be pleased to help you.
Jury Trial Waivers Matter for Your Small Business
Everyone is familiar with the concept of “trial by jury.” In fact, the Seventh Amendment of the United States Constitution codifies the right to a jury trial in certain civil cases. As a business owner, you have the ability to include a “Jury Trial Waiver” in the standard terms of your customer contract. In a jury trial waiver clause, the parties agree that if there is any litigation arising out of or relating to their agreement, each party waives its right to have a trial by jury.
As a business owner, why should you want a jury trial waiver clause in your contract? Because in a potential dispute, a judge would resolve all questions of law and fact. This is known as a “bench trial” instead of a “jury trial.” This could work to your advantage because:
• a jury of laypeople may not understand the complex issues that can be involved in litigation
• a bench trial is likely to produce a more predictable outcome than a jury trial
• a jury can be biased against the “bigger guy” and biased in favor of the “little guy”
• a jury trial takes longer and costs more than a bench trial because they require additional work
At Wyman Legal Solutions, we know there’s a right way and a wrong way to draft contracts for small business clients. Let us help protect your legal rights and cash flow. We can review your business contracts for a jury trial waiver or for any other important terms, provisions or clauses. Just reach out to us today and we’ll get started!
Protect Your Company with Merger or Integration Clauses
Many people know a verbal agreement and handshake aren’t the same as having a well-written business contract. Having a written contract that clearly states and integrates all previous negotiations, representations, warranties and agreements will ensure that the deal is crystal clear.
One of the benefits of a properly drafted contract containing a merger or integration clause is that it eliminates the ability of one party to later claim that they were orally promised something that never made its way into the final contract, and that they were duped into signing the contract based upon this alleged oral statement.
Florida law prohibits the introduction of prior outside agreements, negotiations or representations to contradict or change the written terms of an agreement or to invalidate it altogether when a contract is properly and completely integrated. Without a proper integration clause, a party to a contract can use prior representations, negotiations or agreements to help interpret ambiguous contract terms, modify the actual written terms, or to argue that they were fraudulently induced into signing the contract in the first place.
Having a merger or integration clause is especially important when you’re a small business owner who employs salespeople. Why? If you don’t have this clause, you could spend thousands of dollars arguing in court whether your salespeople’s oral representations modified your written contract.
At Wyman Legal Solutions, we know how to draft contracts that include merger or integration clauses for small business clients that will best protect your legal rights and cash flow. If you want a Florida business lawyer to review your business contracts for a complete integration clause or for any other important terms, provisions or clauses, reach out to us today.
Are you Entitled to Attorneys’ Fees if You Prevail in a Lawsuit?
As business lawyers, we get a lot of questions about contract law and how to better protect your business from legal risks. I’ll be sharing some of the most frequent and important topics with you over the next month. For example, many people think that the winner of a lawsuit in Florida automatically has their attorneys’ fees covered by the loser of the case, but this isn’t always true. It actually comes down to what’s in your contract.
Florida law is clear that each party to a lawsuit must bear their own attorneys’ fees and costs UNLESS a contract or a statute specifically authorizes the “prevailing” party to recover their fees from the “non-prevailing” party. Basically, the courts decide who is the prevailing party, and can even decide that nobody “prevailed” in a particular case, and no fees are awarded at all.
Businesses that utilize contracts are often at an advantage over a consumer when it comes to the terms of their business relationships. Having a clause in a contract that specifies your company’s entitlement to litigation costs and expenses, including attorneys’ fees and court costs, is a smart move for any business. But be careful in drafting that clause – it will be strictly interpreted as it is written. If it isn’t clear exactly what is being included, attorneys’ fees may not be recoverable.
Here at Wyman Legal Solutions, we review our business clients’ contracts and make sure they contain the most thorough, expansive, and enforceable attorneys’ fees provisions. We do this so that our clients can protect their rights to recover litigation expenses and attorneys’ fees to the fullest extent of Florida law.
Need a Florida business lawyer to review your business contracts? Contact us today! We can check your contracts for attorneys’ fee provisions, or for any other important terms, provisions or clauses, and make sure your business is protected.
Why you should NEVER send an email to your personal lawyer from your company email
It’s easy to think that everything you say to your lawyer via text, calls, and emails is private. However, that’s not always the case. Not all communications are secret, even if they are between a client and their attorney. This surprises many clients and causes them to self-sabotage their cases with leaks of information assumed to be confidential. Attorney-client privilege has many benefits, but also limits. These restrictions should, however, not hinder your case.
Attorney-client privilege only protects confidential communications between a lawyer and a client made for the purpose of obtaining legal advice or services. Inherent in this idea of confidentiality is that there must be a “reasonable expectation of privacy” to the communication. You may not have a reasonable expectation of privacy when sending an email to your personal attorney on your employer’s email server.
If your employer has a policy permitting it access to all emails on its server (which, let’s face it, is every employer), Florida law concludes that a person has no reasonable expectation of privacy regarding what is in those emails. Without a reasonable expectation of privacy, those emails can be obtained by your adversary and your adversary’s attorneys in your case.
Still learning the ins and outs of attorney-client privilege and the legalities of privacy? As experienced business and litigation attorneys, we have the knowledge and expertise to protect you and your privacy.
Now YOU Can Afford a Business Lawyer on Retainer…
All businesses have legal needs. Some more than others. Successful businesses address these needs before they turn into expensive problems. On an almost daily basis, your business can face legal issues or questions concerning employees, vendors, customers, licensing, contracts, and much more. Wouldn’t it be great if you had a trusted lawyer you could turn to for legal advice and to help you through legal uncertainties in your moment of need?
And wouldn’t be even better if you could get the timely advice you need without being “on the clock”? After all, it’s hard to pick up the phone to get timely advice when you are not really sure what that advice is going to cost you.
Designed for businesses of all sizes, our “Business Lawyer on Retainer” access plan helps you get the advice and counseling your business needs, when you need it, at an affordable price. For a low, flat monthly fee, you can have the peace of mind of knowing that you have access to a trusted lawyer when you need one without having to worry about unpredictable billing.
Our plans are designed to remove the most common barriers that we find prevent business owners from seeking legal advice BEFORE a problem arises: access, cost and trust.
We want you to come to us with your questions as soon as they arise, so that you can get the help and answers you need before your legal questions turn into legal problems. Once the problems arise, the cost to obtain legal help can be significant, sometimes insurmountable. But when you proactively protect yourself and your business with one of our Business Lawyer on Retainer access plans, you do not need to worry about unpredictable costs and high hourly attorney fee rates to get the timely advice you need.
Invest in yourself and your business with our Business Lawyer on Retainer access plan.
What Do You Do If Your Business Is Sued?
Don’t let the disruption from an unexpected lawsuit distract you from running your business and achieving your goals. The best way to deal with a problem is to anticipate it before it arrives so that you are ready and able to handle it when it does. But sometimes that is not possible. Sometimes you are too busy running the day-to-day business and “putting out fires”, that planning for the future and protecting yourself from potential problems just didn’t receive the attention or priority that you wish it had.
Sometimes a lawsuit will hit you despite your best efforts to avoid it. Anyone can sue anybody for any reason. Not all of those lawsuits will withstand a proper defense, but they all need to be dealt with regardless of how frivolous you think they are. Legal problems crop up when you least expect them, and often at the most inopportune times. Almost all lawsuits can distract you from running your business. Some can outright destroy you.
If your business gets sued, you need an experienced business lawyer to defend your business. Contact me today to learn how I can help you
Attention Contractors and Subcontractors: Know Your Customer!
Did you know that not all construction work entitles you to lien the Owner’s property? Your lien rights go only as far as the land rights of the person who contracted the work. Knowing who your customer is puts you in the best position to file a Claim of Lien that will withstand a legal challenge.
As a construction lien attorney, I have seen too many Claims of Lien that do not properly identify the property to be liened because the contractor doesn’t know whether the person contracting the job is an owner or tenant. I’ve also seen mistakes in liens when the contractor preparing the lien does not understand how to lien work performed for an Association or a condominium unit owner.
When the work is being contracted by:
- The owner of the property: This is obviously the best situation because your lien rights would attach to the entire property being improved. The Owner would not be able to transfer the title to that property while your valid lien is in place.
- A Tenant/Renter: If a tenant is the one making the contract for the improvements, then your potential lien rights are only against the tenant’s interest (i.e., his leasehold). This is not a very valuable lien and does not provide much security.
- An Owner of a Condominium Unit: Your lien is against the Owner’s Unit only. However, a condominium unit owner not only owns his unit but also owns an undivided percent share of the common elements as well, with that percent determined by the Declaration of Condominium recorded in the public records.
- A Condominium Association: Your lien is against all of the units in the Association, not the Association’s property (common elements). For work done on behalf of a Condominium Association, each unit owner becomes technically responsible for their relative percent of your lien amount based upon the ownership that their unit represents as a percent of the whole Association as determined in the Declaration of Condominium. When a condo unit is being sold, the title company will want a release of the unit from your construction lien. This is often accomplished by unit owners “buying out” their percentage of the debt by paying their relative amount from closing in exchange for a limited release that releases only their unit from your Claim of Lien.
Identifying the proper legal description in your Claim of Lien can be tricky, and you are best advised to consult a construction lien attorney to learn how to properly do this. For those who are not familiar with it, Florida’s Construction Lien Law is filled with traps. The lien laws are very technical and any misstep in the preparation or recording of a Claim of Lien can absolutely destroy your lien rights. Consult with a South Florida construction attorney, like me, Andrew Wyman, to obtain the tools and advice you need to make sure you properly and timely preserve your lien rights.
Protecting your payment rights starts with getting properly licensed
Obtaining proper construction licensing is serious business in South Florida. A list of the trades that require licensing can be found at the State of Florida’s Department of Business and Professional Regulation website.
Under Florida Statute §489.128 (1)(c), a contractor is considered unlicensed “only if the contractor was unlicensed on the effective date of the original contract for the work, if stated therein, or, if not stated, the date the last party to the contract executed it, if stated therein. If the contract does not establish such a date, the contractor shall be considered unlicensed only if the contractor was unlicensed on the first date upon which the contractor provided labor, services, or materials under the contract.”
You do not want to be an unlicensed contractor in the State of Florida. The list of consequences is long and harsh:
- Unlicensed contractors and subcontractors may not enforce their contracts. The result is that the unlicensed contractor has no way to enforce their right to payment for work performed
- An unlicensed contractor or subcontractor has no construction lien rights. Florida Statute §489.128(1) provides that “As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.”
- It is a crime to engage in unlicensed contracting. The first offense is a misdemeanor. The second offense is a felony.
Keep in mind, that even if you have a license to do a specific type of work, if you do work that EXCEEDS what you are legally licensed to do, you are contracting without a license and are subject to the penalties written above.
Unlicensed contracting is serious. At Wyman Legal Solutions, we do not condone unlicensed contracting, and as an experienced construction law firm, we do not represent those who knowingly violate these licensing laws. However, if you need help applying for a license or have been wrongfully accused of contracting without a license, contact the construction law attorneys at Wyman Legal Solutions today.
Why should you talk to a construction attorney before signing a lien release?
Subcontractors and material suppliers know that when it’s time to get paid on a job, they’re going to be asked to sign a lien release in exchange for receiving their payment. So, as their construction litigation lawyer, I always ask them about the lien release they signed. Often I’ll hear, “it’s the standard form,” or, “I signed the one the contractor gave me,” or, “I don’t know, I just wanted my check.” Thinking that all lien releases are the same is the surest way to accidentally sign away your lien rights without getting paid.
All too often subcontractors either do not read, or sometimes do not understand, the lien releases they are signing in exchange for progress payments on a project. A common mistake we see as a construction law firm is subcontractors signing a release that contains language releasing lien rights for work performed through the date the lien release is signed. The problem is that very often the payment being made is only for work done during a specific period of time that ended days or weeks before the payment is actually made. By signing that release under those circumstances, the subcontractor has just released his lien rights for the work done between the date he requested payment and the date he signed the release.
If there is any delay between your request for payment and the date you are signing the release, you must make sure that what you are signing is consistent with the payment that is actually being made. Do not just rely on the title of the document or the honesty or good intentions of the parties you are dealing with. If the lien release does not accurately reflect the work being released and the payment being received, then you or your construction lawyer need to insist that changes are made so that the release accurately reflects the payments taking place and the work being released.
It is always the best practice to indicate exactly the last date of your services being satisfied by that payment or to note any exceptions to your release. Don’t be afraid to make handwritten changes to the lien release you are being asked to sign if it seems like it is too broad. Florida Statutes contain a statutory form of lien release in Florida Statute §713.20. However, the parties to a project are free to negotiate different forms of lien releases when they are negotiating their contracts. So the time to be thinking about the lien release form is BEFORE you sign your contract.
Any document you sign releasing any of your lien rights will be strictly interpreted. Don’t sign a lien release that is not accurate. Once a lien release is signed and exchanged for a payment, there is no “un-ringing the bell”. So if you are not 100% sure what you are signing, make sure to seek the advice of a South Florida construction lawyer, like me Andrew Wyman, before you put your signature on any lien release.
To learn more about your rights, visit my website today. And if you still have questions, feel free to contact me anytime.
What is a Notice to Owner and why do you need one?
Here is an unfortunate, yet all-too-familiar call I receive as a construction attorney. A subcontractor calls me concerned about getting paid on a project where he has already performed his work. Now, the general contractor who hired him is telling him that he has to accept less money than what was agreed to. The subcontractor is furious and wants to record a lien on the property immediately. My first question to the subcontractor is, “did you serve a Notice to Owner?” When the answer to that question is “no,” the subcontractor has just learned a hard lesson: If you do not have a direct contract with the Owner, then you cannot wait until the end of your project to protect your lien rights, even with an experienced construction law firm on your side.
The #1 mistake we see subcontractors and material suppliers make is failing to timely serve a Notice to Owner on all proper parties. Failing to timely serve the Notice to Owner is a complete defense to enforcement of your lien rights. By the time you realize that you want or need to protect your lien rights, it can be too late to record the Notice to Owner, and your claim of lien will never be enforceable.
The Notice to Owner must be served no later than 45 days from first furnishing labor, services, or materials at the site. If you are a material supplier, then the Notice to Owner must be served 45 days from your first delivery of materials to the site or, for specially fabricated materials, 45 days from the date you begin manufacturing them. The Notice to Owner must be served on the Owner and every person along the line between your customer and the owner. That means that if you have a direct contract with a subcontractor, then you must serve the Notice to Owner on the General Contractor and the Owner.
So, what’s the solution? Subcontractors and material suppliers, or their construction lawyer, should serve the Notice to Owner on every project as soon as they begin work (you can even serve the Notice to Owner before you start your work). Specific circumstances can shorten this time frame even further, or require additional notices, so be sure to consult with an experienced Florida construction law attorney. The statutory Notice to Owner form can be found in Florida Statute §713.06. And when serving the Notice to Owner, be certain to use the methods identified in Florida Statute §713.18.
Florida’s Construction Lien Law is technical and confusing. Failing to timely serve the Notice to Owner on the proper parties is just one of the many mistakes that can completely destroy a subcontractor’s or material supplier’s lien rights. You do great work. Make sure you know how to protect your right to get paid for it. To properly protect your lien rights, be sure to consult with an experienced South Florida construction lien attorney like me, Andrew Wyman. I understand construction law and am always here to help.
What can you include in your Claim of Lien?
“Greed is good.” While that famous line uttered in the movie Wall Streetmight apply to corporate raiders like Gordon Gecko, it does not apply to lienors under Florida’s Construction Lien Law. Emotional, unpaid subcontractors come to my construction law firm wanting to exact revenge on the people who haven’t paid them by trying to include any and every charge they can think of in their Claim of Lien: interest, attorneys’ fees, cost of filing the Claim of Lien, overhead, lost profits, and so on.
But that is not permitted under Florida’s Construction Lien Law. You can only record a Claim of Lien for the work you have actually performed or for the materials you have furnished to the project. You cannot include amounts for unperformed work, even if you were wrongfully terminated from the project. You can add unpaid finance charges, but you cannot include any other administrative costs or attorneys’ fees in your Claim of Lien. You also cannot include lost profits or overhead or costs related to the preparation of the lien. Including impermissible charges in your Claim of Lien not only invalidates your lien, but it can subject you to liability for recording a fraudulent Claim of Lien.
Florida Statute §713.08 identifies the important and required information that you or your construction lien attorney must also include in your Claim of Lien aside from the value of your work performed and amounts unpaid. Generally, this includes the legal description of the property, the first and last dates that you furnished labor, services or materials to the project, the identity of the owner and the description of the work you performed, the date you served your Notice to Owner and certain statutory warnings. An experienced construction lien lawyer can help guide you through the process of gathering this information.
Florida’s construction lien law is very technical, and the slightest mistake can destroy your lien rights. Be sure to consult with a South Florida construction litigation lawyer who understands the lien law and who can provide you with the resources you need to always protect your lien rights.
If you have questions about Claim of Liens, contact me today to learn more.
How a construction lien attorney can help you file your Claim of Lien
As is true for most things in life, “timing is everything”. This is especially true under Florida’s Construction Lien Law. As a construction law firm, a common mistake we see made by subcontractors, material suppliers, and even contractors who have a direct contract with the Owner, is failing to timely file their Claim of Lien. Making that mistake is fatal to your lien rights – end of story. By speaking with a construction attorney, you can avoid this mistake.
Some subcontractors think that their Notice to Owner serves as their Claim of Lien. It does not. The Notice to Owner is merely the first step a subcontractor or material supplier takes to preserve their right to record a Claim of Lien. But the Claim of Lien is its own, separate document that must also be completed properly and recorded timely to be enforceable.
Under Florida Statute §713.08, the Claim of Lien may be recorded at any time during the progress of the work or thereafter, but not later than 90-days after the final furnishing of the labor or services or materials by the lienor. This does not include punch list work. This timeframe cannot be extended by a written agreement or even with the written consent of the Owner. And take note; that to be effective the Claim of Lien must timely be recorded in the clerk’s office of the county where the property is situated. Service of the Claim of Lien on the Owner does not by itself preserve your lien rights.
What happens if the contractor or subcontractor who hired you is terminated from the project? How does that affect your timeframe for filing the Claim of Lien? In that case, the lien must be recorded within 90 days of the contractor being terminated, even if that date is sooner than or earlier than 90 days from your last work. During this situation, it may be wise to consult with a construction dispute lawyer.
For those who are not familiar with it, Florida’s Construction Lien Law is filled with traps. The lien laws are very technical and any misstep in the preparation or recording of a Claim of Lien can absolutely destroy your lien rights. Consult with a South Florida construction attorney, like me, Andrew Wyman, to obtain the tools and advice you need to make sure you properly and timely preserve your lien rights.
Do you need a construction litigation lawyer to help enforce your Claim of Lien?
If I’ve seen it once, I’ve seen it 100 times. Subcontractors, material suppliers, and even contractors who have recorded liens, wait too long to file suit to enforce their liens, neglect to contact a construction dispute lawyer, and lose their lien rights forever. They will record their Claim of Lien, and then sit back and do nothing, hoping that the Claim of Lien by itself will force the Owner to eventually make a payment. That is a strategy that is destined to fail.
As an experienced construction law firm, once we record a Claim of Lien for a subcontractor or material supplier client, we advise our client not to wait too long before trying to enforce their lien by the filing of a lawsuit. However, subcontractors will often delay or hold off in filing a lawsuit to enforce their lien because they are in discussions with the contractor or the owner about getting paid and because there are legal fees involved in filing that lawsuit that the client is usually looking to avoid. But you need to understand that no amount of negotiations can revive your lost lien rights if you wait too long to file that construction lawsuit.
Florida law requires that a commercial construction lawsuit to foreclose a claim of lien must be filed within one year from the date it is recorded. If you or your construction lien lawyer do not file suit to enforce that lien within that one-year period of time, your lien automatically expires and is no longer a lien on the property. At that point, it becomes unenforceable. Owners, especially savvy Owners, will try to take advantage of an unrepresented lienor and drag out payment discussions until this one-year period expires.
We have also seen subcontractors enter into agreements where they agree to hold off on enforcing their Claim of Lien in exchange for a written agreement by the Owner consenting to extend the one-year deadline; however, there is absolutely no authority whatsoever that those agreements are enforceable. Likewise, re-recording a Claim of Lien does not extend your time to file suit to foreclose the lien. That one-year deadline must be treated as if it was written in stone.
So what do you do? Even after recording your Claim of Lien, do not ease off of the Owner in your efforts to get paid. Keep applying constant pressure. Do not wait too long before initiating the Claim of Lien foreclosure process. Under no circumstance should you let your Claim of Lien sit for even close to one year before filing a lawsuit to enforce it. Claims of lien cannot be extended beyond one year without the filing of a construction lien foreclosure lawsuit.
A knowledgeable South Florida construction lien attorney, like Andrew Wyman, can protect your lien rights, help you understand Florida Construction law, and also provide assistance so you get paid and keep your business cash flow positive. Consult a Florida construction law attorney early and often to make sure you do not make a mistake that costs you money.
The Notice to Owner – Protect Your Lien Rights Under Florida’s Construction Lien Law
Under Florida’s Construction Lien Law, it is essential for most subcontractors and material providers, except those who have a direct contract with the Owner, to serve a Notice to Owner in order to perfect their construction lien rights on a project. These “non-privity” lienors must take additional steps to notify the Owner of their involvement in the project. This is done by serving the Owner and General Contractor with a “Notice to Owner”. The Construction Lien Law Section 713.06(2)(c) provides the proper form.
Most importantly, a Notice to Owner must be served timely or all lien rights will be lost. A Notice to Owner is generally considered to be timely when it is served (a) before commencing to supply services or materials, or (b) after commencing to supply service or materials, but before one of the following events occurs: (i) 45 days elapse from the first furnishing of services or materials, or (ii) the general contractor presents the Owner with a final affidavit and the Owner makes final payment. When specially fabricated materials are involved, the time period to serve the Notice to Owner begins to run from the date the fabrication of the materials commences – not first delivery.
The Notice to Owner is required to be served at a time when, generally, a subcontractor or material supplier does not know or expect that a lien could become necessary or desired. Therefore, it is always best for a subcontractor or material provider who does not have a contract with the Owner to serve a Notice to Owner on the Owner and general contractor of the project in a timely fashion in order to preserve future lien rights on a project. The Notice to Owner, by itself, does not act as a lien. It is merely the first, but a critical step in the lien process for most subcontractors and material providers.
There are a few exceptions when a Notice to Owner is not required. However these circumstances occur infrequently and need to be evaluated on a case-by-case basis. The best practice is for a subcontractor or material provider to always serve a Notice to Owner when they do not have a direct contract with the Owner.
A failure to timely act under Florida’s Construction Lien Law will result in a waiver of lien rights. You’ll severely lose leverage later and this one mistake can easily prevent a subcontractor or material supplier from getting paid. Knowledge of these laws is critical, and every circumstance is different, so be sure to consult with an attorney who is familiar with Florida’s Construction Lien Law.
When Must My Homeowners Insurance Company Pay To Replace My Roof? Florida’s “25% Rule”
In 2017, the Atlantic coast of the United States was hit with three of the top five costliest hurricanes ever (Hurricanes Harvey, Maria, and Irma). Early forecasts are predicting that the 2018 South Florida Hurricane Season will be busier than usual. And while roofs and roofing systems are among the most damaged portions of residential and commercial properties during hurricanes, insurance coverage for roofs is among the most misunderstood.
As a property owner, it is critical that you have your roof inspected as soon as possible after a hurricane if you think your roof may have suffered any damage. If your roof was damaged, immediately contact your insurance company to initiate a claim. And if there is any way for you to minimize any further damage (such as by covering your roof with the dreaded “blue tarp”), do so immediately.
When must your insurance company pay to replace your roof instead of repairing it? This depends on many factors – the most relevant is Florida’s Building Code Section 708.1.1, which states:
“Not more than 25% of the total roof area or roof section of any existing building or structure shall be repaired, replaced or recovered in any 12-month period unless the entire roofing system or roof section conforms to requirements of this code.”
For older roofs, damage is more than 25% of the roof can require your insurance company to pay for an entirely new roof based on current Florida Building Code requirements. What this means to you is that if any particular “roof section” suffers greater than 25% damage, then you are entitled to a replacement of that entire “roof section.” A “roof section” is defined in the Florida Building Code as:
“A separating or division of a roof area by existing expansion joints, parapet walls, flashing (excluding valley), difference of elevation (excluding hips and ridges), roof type or legal description; not including the roof area required for a proper tie-off with an existing system.”
As a general rule of thumb, roofs with ridges or valleys are considered a single roof section based on the 25% evaluation. Roofs that contain different materials (such as tile and flat), or that have different elevations are considered to have multiple roof sections. The damage analysis is conducted on a section-by-section basis.
Insurance companies will often try to minimize roof damage or argue that certain damage was pre-existing to avoid paying to replace an entire roof. After all, it is cheaper for your insurance company to only pay for patching damaged areas than to pay to replace your roof. Insurance companies will take advantage of the unrepresented property owner in these situations. To have a fighting chance of obtaining the roof replacement you are entitled to, you need to level the playing field with your insurance company. Engaging professionals such as hurricane or insurance lawyers, public adjusters, and roofing consultants can drastically increase your likelihood of convincing your insurance company to pay for a full roof replacement. These professionals know how to evaluate roof damage, and also understand how these evaluations affect your insurance coverage.
When clients retain Andrew Wyman of Wyman Legal Solutions for roof damage claims, we quickly coordinate with a roofing consultant to inspect your roof and determine whether any tile “uplift” occurred during the hurricane. This may have caused damaged to areas below the tile, not readily apparent to the untrained eye. We then take the roofing consultant’s report and obtain a cost estimate for the replacement of the roof. We submit these reports to the insurance company on your behalf and handle all negotiations and arguments with their adjusters so that you obtain the compensation you are entitled to.
There are also other circumstances that require an insurance company to pay to replace your roof even if your roof did not suffer 25% damage. For example, did you know that if your roof tile is no longer manufactured and you are unable to match new tiles to your existing tiles that you may be entitled to a roof replacement?
If your roof was damaged by a hurricane or other storm, Andrew Wyman and Wyman Legal Solutions can help empower you to obtain the recovery that you deserve. For an initial consultation, please call (561) 361-8700 or schedule an appointment online today.