By Diane Dennis
My California construction attorney,
David J. Barnier, Esq., of Barnier Law Offices in San Diego, CA,
answers California construction-related questions, such as the one below, from my readers - free of charge.
Until I have an Ask Dave webpage set up please email your questions to me and I'll forward them to David.
Collecting on her construction mobilization payments was becoming an issue for Alisha from M.L. Nielsen Construction, Inc. on a particular project.
She sent me the following question and my attorney, David Barnier, was more than happy to help.
I've had a question come up about construction mobilization payments, thought I might be able to pick your brain if you're not too busy, since I know you work with LOTS of contractors and my question is one of industry standards.
work for a general contracting firm that does reconstruction projects
on apartments, condominiums, and townhomes. We are about to begin a
reconstruction project that totals approximately $3,000,000.00 and
involves construction mobilization payments.
I recently submitted an invoice to the project's Architect for the mobilization payment, which is 10% of the contract value; about $300,000.00.
(Side note: Our contract clearly states that mobilization will be 10% of the contract amount and lists the amount. The contract was approved by both the Property Manager and the Board of Directors.)
The Architect called me today and told me that he wouldn't approve our construction mobilization invoice, that we can only bill 10% of the contract or $1,000.00, whichever is less.
I know that this is the case with home improvement contracts, but these types of jobs are a different scale and magnitude.
Our billing for this job is set up on a monthly
cycle, so if we aren't able to get this mobilization payment, we will be
floating about half a million dollars for about 45 days. If we do get
it, we will be floating about $200,000.00, which is not wonderful but
better than the alternative.
I have had ten years experience in this specific industry and have worked with two companies in those ten years. Both of those companies have been around since the 70's and both have the same standard in dealing with construction mobilization payments since that far back.
I have administrated many jobs where I
have used this same method, and have never been questioned by any of the
construction managers or architects that I've worked with in the past.
Do you happen to know what other contractors find typical in this situation?
Thank you very much for any help you can give me. I really do
Hope all is well with you and your family.
M.L. Nielsen Construction, Inc.
Hi Alisha! Thank you SO MUCH both for your vote of confidence in me and for your wishes of well for my family! Below is the response from my attorney. I hope that all is well for you and yours as well! Diane
The $1,000 limitation applies to contracts for home improvement.
The statutory definition of "home improvement" is straightforward but not clear in its application:
remodeling, altering, converting, or modernizing of, or adding to,
residential property and shall include, but not be limited to, the
construction, erection, replacement, or improvement of driveways,
swimming pools, including spas and hot tubs, terraces, patios, awnings,
storm windows, landscaping, fences, porches, garages, fallout shelters,
basements, and other improvements of the structures or land which is
adjacent to a dwelling house."
under the literal definition, a large contract for reconstruction on
many residential units would seem to fall under the definition of "home
But the spirit of the home improvement laws is to protect unsophisticated individual homeowners, not to protect savvy owners of multiple units who are retaining a contractor to perform $3,000,000 in work.
This is a tough area on which to advise a contractor due to the literal definition of "home improvement" and the analysis, above.
Even if the customer agrees to pay the 10% deposit, the customer may come back later and allege a violation of the Business & Professions Code sections that create the requirements for home improvement contracts, including the $1,000 rule.
There is no certainty
that a court would agree with the argument that the statutes were not
intended to protect the owner of many units who retained a contractor to
perform $3,000,000 in work.
I like to think that I'm up to speed on the laws affecting this issue and related issues, but I cannot point to any clear guidelines for this situation.
I would graciously
appreciate any information from an attorney or contractor that can shed
light on this issue.
For this situation, consideration should be given to the specific circumstances, after which the contractor would probably be forced to make a decision based upon the risks associated with accepting an initial payment of more than $1,000.
can contend that the home improvement rules do not apply and demand the
mobilization fee to be paid, but there is no clear law that confirms
that the $1,000 rule does not apply to this situation; even if the
10% is paid the customer might make arguments down the road that there
was a violation of the home improvement laws even if the customer had
already agreed to pay the 10% amount.
In sum, I regret to say that I have no clear answer due to the unclear state of the law and the risks involved.
Please do feel free to contact me if you'd like to discuss this further.
Thank you Alisha!
David J. Barnier, Esq. - Barnier Law Offices of San Diego
California Construction Litigation Attorney
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