What Kind of Attorney Reviews AIA/Construction Contracts?

7 years ago

DH and I are starting our first build and we want to hire an attorney to review the contract with the architect. (We haven't hired an architect yet, but the contenders all seem to use the AIA contract). We'd like an attorney who is knowledgeable about these contracts and construction/building to review the contract and suggest additions that will help protect us. We'd also hope to hire this person to review our construction documents/contracts.

I've looked in my area and there are construction attorneys, but they seem to mostly be large firms that represent builders, contractors, and owners of large commercial buildings. Do these types of attorneys even work with homeowners like me? Should I just be going to a regular attorney for this service? If so, how would they be knowledgeable enough about these types of contracts to know what needs to be included to protect me?

Thanks,

Jea

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Comments (5)

lexma90
7 years ago
A lawyer who lists herself as a real estate attorney should be knowledgeable, or a "regular" attorney who does general work. I would say, just call and ask if they have experience in this type of thing. If he says yes, ask how many he's done, and how recently.

I'm an attorney, working in-house, a generalist who primarily negotiates contracts for my company. In my personal life, I felt comfortable reviewing and negotiating the agreements that we entered into with our architect and our builder. I think a general attorney could provide the right advice.
jea5281 thanked lexma90
User
7 years ago
I wish I had done this. One word change (1!!) between the 3rd and 4th drafts cost us $10,000 and lost the good will we had towards our architect who was very talented and experienced. We had asked him to confirm our plain language understanding of the item in question, which he did in an email to us. However he changed that one word in the final draft. We weren't looking for it, as we assumed we had an understanding based on the email. When we found out what he had done, we lost all confidence in him. And his preferred contractors.

It cost him money in the end. We did not continue the contract through construction, which would have given him more than the 10k.

Live and learn.
jea5281 thanked User
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@Virgil Carter, I'll see your list and raise you one. Not legal advice, but a couple of things from a builder's perspective that you may wish to include in a residential construction contract: 1. Make sure your contractor is legally qualified to perform the contract scope of work. Here in Virginia there are different classes of contractor's licenses which limit the scope and cost of work the contractor can legally perform. Some language stating the builder warrants that they are licensed to do the contract scope of work is helpful. 2. Make sure your contractor is required to pull any necessary permits. It's a red flag if your contractor asks you, the homeowner, to pull a permit. 3. Your contract should incorporate whatever state-specific language is required by law. A construction contract here in the Commonwealth of VA has some state-specific language that you won't find in the standard AIA A105. 4. Lots of threads on houzz.com relate to issues of quality. Your contract should reference whatever standard will be used to assess quality. The AIA A105 contract makes the architect both judge and jury with respect to correction of work that fails to conform to the contract documents. In my experience, while there may be some specifications included in the contract documents, a well written, objective, third-party standard such as RS Means Residential & Light Commercial Construction Standards or NAHB's Residential Construction Peformance Guidelines will better serve both homeowners and builders with respect to quality assessment and specific remedies required when the work fails to meet the quality standard. 5. You should define what "substantial completion" means. That might be a permanent certificate of occupancy, but there are times when it might be a temporary c.o. For example, one of the counties we work in requires that the site be stabilized with at least 80% of turf established before they'll issue a c.o. That's tough to do if you're trying to get grass to grow out of season or the sod farms have stopped cutting sod for the season. 6. Depending on the project site, your contract might need to specify surveys to be performed by a surveyor licensed in your state at particular milestones. For example, having the footings staked by a surveyor prior to excavation or requiring a foundation survey to ensure the home is built within the required set-backs before framing begins. 7. Your contract should include a written warranty or otherwise reference the applicable statutory warranty. The AIA A105 contract requires the contractor to correct work not conforming to the requirements of the contract documents for a period of one year after substantial completion. However, where we build contractors are required to remedy any work that doesn't comply with code requirements for a full three years after completion. I'd be concerned that you might get the short end of that stick if you use the AIA language, which is why I strongly recommend you don't sign anything before recommendation no. 8 below. 8. Have a local attorney with expertise in your state's contractor laws review the proposed contract before you sign it. That way you'll be sure it contains any required state-specific language and the contract terms don't provide less protection than state regulations would otherwise provide.
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PRO
Virgil Carter Fine Art
7 years ago
It's always a good idea for owners to fully understand all of the agreements to which they are a party. I agree that an attorney experienced in real estate and construction should have the necessary experience and understanding of how projects are designed, bid and built. But always check experience and references before deciding.
PRO
ROAM Architecture
7 years ago
Hi, Jea,

You will be looking for either a general attorney, a real estate attorney or construction attorney to help you review the AIA contract. Keep in mind that the AIA contract between owner and architect is a pretty fair and equitable one for both parties, and has been established through years and years of practical use and testing. It's become standard in the industry for a reason. Feel free to use it as a starting point, and definitely get to know and understand it's finer points, but please don't start out by feeling that it gives a certain advantage to one party over the other because it doesn't.

As far as hiring someone to help review your construction documents, I assume that you mean the drawings and documents that your architect produces in conjunction with your home design? For that service, although it's pretty rare to do so, you would want to engage in a "peer review" with another architect.

Keep in mind that all this review and checking up on your professionals will ultimately add costs to your project -- both in dollars and in time. It begs me to ask the question, if you are concerned about setting up a concrete system of checks and balances from the beginning, maybe you don't entirely trust your professional team for one reason or another? I'd encourage you to invest your money in a team of professionals that you completely trust, starting with the architect, rather than spending your time, effort and energy checking up on everyone. I'd personally rather see those resources go into the building's construction, and not into soft costs like attorney and peer review. Just some food for thought.

Wishing you the best of luck with your upcoming project.

Best,

Amy
User
7 years ago
It would require a very expensive house project for me to take the trouble to use an AIA Owner-Architect contract since there just aren't that many issues to resolve but it is the best way to avoid trouble if you don't know a construction services attorney.

Since most of the sticky legal work is already done in a standard AIA agreement and the instructions are quite good, any lawyer should be able to review and make relevant suggestions. I recommend using the printed form instead of the computer generated version and making changes by crossing out wording and initialing in the margin and referencing a separate exhibit sheet containing revised wording and special issues. That makes if difficult for small changes to be missed.

Rather than hiring another architect to review the drawings, hire a contractor as a consultant for a fee. If possible hire the contractor at the beginning of the design process and to help with construction issues and detailing. See if the contractor will deduct that fee (or part of it) from the first invoice if he wins the bid.

What Kind of Attorney Reviews AIA/Construction Contracts?

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lexma90

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