David C. Hiestand
Attorney-at-Law
I represent both individuals and commercial clients in all types of real estate transactions. Select a box to learn more.
We represent developers of all types of real estate, including unimproved land, commercial office buildings, residential projects, and shopping centers. Our work includes drafting and negotiating purchase contracts, ground leases, site development agreements, restrictive covenant and easement agreements, and related documents pertaining to the development and use of unimproved or improved real estate.
Our attorneys also have an understanding and expertise in all aspects of land use planning such as zoning, subdivision, annexation, variances, special exceptions, signage, planned unit developments and work diligently to obtain all necessary governmental approvals.
Our office has years of experience in representing suppliers, subcontractors, builders, and property owners in all aspects of construction from the initial planning stage through actual construction.
On behalf of builders, suppliers, and subcontractors, we prepare supply and service contracts, pre-lien notices, mechanic’s liens, and foreclose the liens.
We counsel individuals undertaking construction projects on the drafting of construction contracts with particular focus on warranties, time and delay, payment procedure, and services covered to avoid many of the unexpected problems that are encountered during the construction process.
Construction Contract
In a construction contract, the scope of work and allowances should be carefully reviewed. Also, consider inserting an outside completion date with a penalty for late delivery. Finally, make sure you have the right to inspect the home during the building process and prior to closing — just because a home is new does not mean it was properly built.
No Lien Provision
A contract for the construction of a home may include a provision that a lien may not attach to the real estate or any improvement of the owner. To be effective against subcontractors/suppliers the contract must be recorded not more than 5 days after execution.
Contractor’s Affidavit and Lien Waivers
Any payment request should be accompanied by a sworn contractor’s affidavit and lien waivers from the subcontractors and suppliers. If lien waivers are not provided, the check should be payable to the general contractor and subcontractor/supplier to ensure the subcontractor/supplier receives payment.
Responsibility to Subcontractors and Suppliers
A subcontractor/ supplier may have the right to file a lien against the real estate even if you pay the general contractor in full. In addition, if you receive a notice of personal liability, you may be responsible to the subcontractors/suppliers for the amount paid directly to the general contractor after receiving the notice if the general contractor fails to pay the subcontractors/suppliers.
Holdback
If you close prior to completion, make sure that sufficient funds are held back (escrowed) at closing to motivate the builder to complete the remaining items — typically 200% of the cost of the items.
Statutory Warranties
If your new home is defective, there are statutory warranties provided by a new home builder (unless properly disclaimed) which may provide you some help. However, before filing a lawsuit, there is a statutory notice and dispute procedure with which you must comply.
Purchase Agreement
The purchase agreement is a written contract which is binding upon both the buyer and the seller. If there is something that is important to you, it should be contained in the purchase agreement. At a minimum, the purchase agreement should contain the property description, price, earnest money, personal property which the seller should leave, financing, title and inspection contingencies, dates for closing and possession, and tax and cost allocations. For most people, purchasing real estate is the largest transaction they will undertake during their lifetime; you need to adequately protect yourself during the process.
Financing
If you are a buyer, you may want to meet with a lender prior to searching for your new home. Your lender will help you understand your anticipated mortgage payments, applicable interest rate, and the funds which will need to be escrowed. As a seller, you will want your prospective buyer to be “pre-approved” for a loan in the amount stated in the purchase agreement.
Inspections
The buyer should ask for acceptable inspections as a contingency in the purchase agreement. As attorneys, we see a lot of disputes develop after transactions that are the result of inadequate inspection or not fully exploring issues that are included in the inspector's report.
Marketable Title/Survey
The seller typically is required to provide a title insurance policy to the buyer insuring marketable title to the property. The title commitment will list all of the recorded documents which affect the property including easements and restrictive covenants. These documents should be reviewed carefully. A survey is often recommended and will help protect against boundary disputes with neighboring property owners.
Insurance
Your home is one of your most valuable assets and you should carry home owners insurance which typically covers damage to the property as well as general liability.
Closing
Typically, it takes around 30 to 45 days to satisfy all of the conditions and prepare for closing. At closing, the seller will deliver a warranty deed and each party will sign the closing statement which shows the allocation of costs and distribution of monies.
Person Entitled to Lien
A contractor, subcontractor, mechanic, a laborer, or any other person performing labor or furnishing materials or machinery for the erection, alteration, repair, or removal of a house, building, bridge, structure, sidewalk, drain, well, sewer, or any other earth moving operation may have a lien.
Lien Requirements
The statement and notice of intention to hold a lien must specifically set forth (i) the amount claimed, (ii) the name and address of the claimant, (iii) the owner’s name and latest address as shown on the property tax records of the county, and (iv) the legal description and street and number, if any, of the lot or land.
Filing of Lien
The lien notice must be recorded not later than 90 days after performing labor or furnishing materials. If the labor is performed or materials furnished to a one or two dwelling unit, the deadline for filing the lien is 60 days.
Pre-Lien Notices to Owners
A person who sells or furnishes on credit any material, labor, or machinery for the alteration or repair of an owner occupied single or double family dwelling to anyone other than the occupying owner must furnish the occupying owner a written notice of the delivery or work and of the existence of lien rights not later than 30 days after the date of first delivery. If it is original construction, the notice must be furnished and a copy of the written notice must be recorded not later than 60 days after the date of first delivery.
Attorney Fees
A lienholder who recovers a judgment in any sum is entitled to recover reasonable attorney’s fees unless the property owner paid the contract consideration.
Foreclosure of Lien
The complaint to enforce a lien must be filed not later than one year after the lien was recorded.