By Bryant Byrnes, Esq.

Emergency “Board Up” Work.

It has been bandied about as long as I can remember that emergency “board-up” work doesn’t need a contract – that there are special exceptions/waivers in the Business and Professions Code to the written contract requirements for home improvement services.

This is a contractor urban myth. There are no explicit statutory exemptions for emergency services from the writing requirement if the cost of such services exceeds $500.

I not only looked in the Business and Professions Code, but actually asked David Fogt, Chief of Enforcement for the Contractors State License Board.

Business and Professions Code Section 7151 defines what are considered home improvements, as well as home improvement goods or services. If any of the statutory criteria are meet, then a written contract is required. And it doesn’t take much.

Whether boards placed over the windows and other openings on a home after a fire or other emergency situations would be considered “affixed” as to meet the statutory requirement is an interesting question. Given that such boards/materials are temporary by their very nature, they may or may not be covered under Section 7151.

However, there are no clear statutory exemptions for such emergency services. If the cost to provide such were to exceed $500, it is advisable to have a written contract.

So what does one do in a “board-up” situation? Give the client a contract of course. The tougher question is – the regular long one with all of the notices, or a short one? If one is also going to do any follow up remedial work, use the long one.

“Stearman Fees”; What In The World Are They? This also came up recently. An attorney chasing after one of my contractor clients threatened him with these critters; “…and we are going to request Stearman Fees too.” I was, for once, a bit clueless when asked about them.

Although you may not be familiar with the term now, you probably will be at some future time. The term comes from a California lawsuit in which the plaintiff was Stearman. These specific fees/costs are becoming more common as a threatened measure of recovery by homeowners against contractors in construction defect cases. (I recently saw them again in a second matter.) However, they appear only applicable to a very specific group of contractors in very specific circumstances.

“Stearman fees” or “Stearman costs” are not really fees or costs at all, but a specific type of damagesthat may be claimed by a homeowner plaintiff in an action alleging construction defects to a residential property. These damages entitle homeowners to recover any expert fees incurred for repair or expert investigative services involving the construction defect in question.

These types of damages may only be sought however against a “builder”. For the purposes of these damages, “builder” means a builder, developer, or original seller. But here is the kicker: they only apply to new residential units sold on and after January 1, 2003.

In summary, Stearman Fees only apply to those contractors who have constructed new homes which were sold after January 1, 2003. But they typically don’t apply if you are involved with a home improvement project of an existing home. The threat of Stearman Fees may come up, but they usually do not apply to remodelers.

So now you know.

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Bryant H. Byrnes, Esq. practices construction law in the San Francisco Bay Area and is counsel to the SFBA NARI Board of Directors. Questions? His website is www.bryantbyrnes.com. Feel free to contact Bryant by email at bhbatty@pacbell.net.