Protocol & Performance
Firing (PART 1)
(PLEASE, TAKE QUICK BREAKS IF YOU HAVE TO)
[Hi. Hopefully at this point, you’re even more motivated than ever to ensure that your protocol for authorizing your home projects isn’t only improved, but continually enforced]
The strongest, most respectable Commercial Code which invariably takes seriously the ludicrous accusations of a contractor can make for any mix of “injustices” associated with being fired is the “Home Solicitation Sales Act” (since around 1969). Although, over the years, it has been adopted, revised, and customized by each individual state, part of its major premise is most popularly known as the “3-Day Clause.” This Commercial Code mandates a window of 3 business days in which you can cancel your contract. Some take that to mean that once the 3-day period has elapsed that they automatically forfeit their right to cancel.
Therefore, through being so quick to toss in the towel, we can realistically infer that those residents so influenced are very likely to tolerate the presence of people they don’t even want or need on their property … for who knows how long? However, that’s really no absolute since there are also extraneous circumstances which exonerate you from being liable for depriving some poor, low-life malcontent from furthering his/her/their unfair and wicked vendetta. Among there are:
1. Lien Waivers;
2. Contractual terms with the force of lien waivers;
3. Out-of-court settlements (this last one is addressed in Day 12 – Settlements, which we’ll forego in this one)
Foremost, it’s apparent that the phrase “Lien Waiver,” (as most legal jargon) isn’t part of the preferred vernacular of most people we may know. A major reason for this is the fact that legalese isn’t socially relevant to the circumstances of the consensus. It’s like part of another language "not worth the trouble" understanding. Face it, when it comes to legal terminology, for many of us, it’s an unwanted, uninvited conceptual challenge. In other words, it’s something which demands figuring out which we’d rather not do. What’s the point of it, anyway?
However, for the sake of more assertiveness on the homefront, as an American private home decision maker, when it comes to the business of the home, it’s to our advantages to understand at least some of the phraseology and the challenges/resolutions they present relative to our home projects. So, as it concerns the "lien waiver" in this case, here is what it means within the context of home maintenance and improvement priorities:
* A legal document a contractor signs in which he/she willingly promises to refrain from suing you (filing a civil lawsuit) under conditions specified in that document. (Lien Waiver!)
In this case, one condition would be against the contractor suing you if after 3 days he/she does something which "breaches" your contract and you have your attorney serve him a "Notice of Cancellation."
When all is said and done (with respect to your end of the deal relative to your home projects) a "lien waiver" legally protects you from being successfully sued by anyone and everyone who may at some point in the future (or during the project) claim you owe them money. So for your purposes … …
1. The lien is a legal action usually taken by the County Court (In Louisiana, that would be the "Parish Court") which has jurisdiction in the area in which the property exists. The action entails taking and holding property belonging to you of that respective county/parish when the court finds reasonable cause that you owe whomever is staking a claim on you owing him/her/them money [claimant(s)]. It follows, that once this lien is granted against you, the courts (where granted) can legally possess and hold any of your property deemed worthy enough to satisfy that claim. In most states, this is known as a "Mechanic's Lien;" in Florida, as a "Construction Lien,"; in your state, please, make it your business to know.... ....;
2. The waiver, however, is when the same "most eligible candidates" for suing you, legally decline/refrain from so doing as an honorable gesture towards getting the gig. This waiver of the lien factor can be a separate legal form prepared by your attorney and/or a clause within the physical body of the contract. It's recommended that you always involve your attorney in any legal documents you have to present and/or sign with contractors. As much as possible, please, request that your attorney does this on a pro bono basis (without charging you). Private attorneys are normally also open to affordable "package deals" with their clients. Either way, it's not recommended to handle any legal forms (contracts included) without qualified legal counsel.
Lien Waiver Clauses
Example A - What Might Be in Your Own Home Improvement Contract:
" I (the contractor) acknowledge and accept the fact that in signing this contract I waive my right to any interest in the property and/or the home which sets on it as described in this contract and I waive any right to claim a lien on said property for any labor, professional services, accessories, appliances, electronics, equipment, incidentals, legal fees, materials, miscellaneous, rentals, other services, supplies and/or tools purchased and/or furnished for the above described property if for any reason I violate any portion the terms of this agreement, and I am subsequently disqualified from any further participation on the same. "
You can use lien waiver clauses like this, on the advice of your attorney, which are potentially binding since they're constituents of an agreement or contract which, by its own virtue, is a legally binding document ( all proper ingredients intact, however). Yet, before signing any contract (whether yours or the contractor's) consult with a cleared attorney familiar with the home improvement aspect of things. You may want an attorney present as one of two witnesses signing it, also.
Example B - What Might Be in a Contractor's Home Improvement Contract:
Here, you may want to be very careful of terms in a contract presented to you for signing. Here's why (just in case you may not have known): Contractors offer Lien Waivers to protect themselves, too. Yet, some go beyond the toilet on this.
So, please, be very careful there.
Stop! Look! Listen! Much of the time, some established contractors have in-built clauses with the legal force of their own lien waivers against you taking them to court or cancelling the project without incurring penalties. Basically, such clauses, although worded differently, retain this meaning:
“If for any reason we do any damage during the course of this project or if the roof collapses, you promise not to hold me/us liable for it since that’s the risks for this nature of project. Further, in the event you cancel this project prematurely or don't hire me/us for this project, you promise not to interfere with my/us suing you for breach of this agreement."
Of course, the may be sort of outlandishly in your face. However, principally, this is "out in the open" about some contracts. This is even more reason to Stop, Look, and Listen to see what’s really going on with people and with the documents they’re begging you to sign. Of course, that’s the plain, overt, simplified rendition of what’s typically a very deeply camouflaged beast-of-burden in between the lines.
For sure, by comparison to other “Protocol & Performance”moments, this one is perhaps the longest (by far). But, truly, firing someone off your project is a very serious and pivotal project matter. So, unless you’ve got those lien waivers signed by all the the lead contractor, subcontractors, and laborers, you could be in for a very rough legal ride. Lien waivers, as you know, are very serious constituents for incorporating and enforcing in your protocol. Please, don’t take using them lightly or as sacrificial options. Cover your but … … Utilize lien waivers to their fullest. Also be on the lookout for somebody else’s.
2. Bonus Excerpt from "Power in the House! - M.S.E." (Chapter 19)
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Tomorrow: Day 11 – "Firing" - Part 2
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FIRING - PART 1
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