Construction Law Fundamentals
Construction law is integral to the development and management of building projects. It encompasses a range of issues, from contract negotiation and drafting to risk management and avoiding liability. A firm grasp of construction law enables legal professionals to better serve their clients, whether they’re developers, contractors or other stakeholders in a construction project.
Understanding the fundamentals of construction law:
Construction law is an intricate and evolving practice area that includes aspects of contract law , employment law, real estate law and more. Many jurisdictions have specific laws and regulations that govern the construction industry at both the state and local levels, while national standards exist for general best practices.
The more you know:
A basic understanding of construction law is essential for any attorney working with clients in the construction industry. Legal and financial decisions regarding how construction projects are implemented and managed takes place at every level, and having the right information on hand is vital.
Recommended Construction Law Books for rookies
For those starting out in construction law, some excellent books will get you on the right track. While there are university texts in this area (and some are excellent), these texts are somewhat dated and theoretical. Therefore, I am limiting this list to practical, recently published books relevant for U.S. construction lawyers. (While laws and issues discussed are likely to be relevant for Canada as well, Canadian textbooks are not included.)
Principles of Construction Law by M. Steven Houghton and Michael T. Callahan (2010). This is my "go to" book when I need to brush up on a particular aspect of construction law or am called upon to teach a class or present a seminar. This is because the authors have broken down the various aspects of construction law into various easy to read, short chapters. The analysis and methodology employed is "easy to follow," and the cases selected to illustrate the various issues at hand are current. The general method employed is to report on a relevant case and then sum up specific lessons learned from that case. While only a slim 150 pages, this is an excellent first book on construction or surety law.
Construction law: from Beginner to Expert in 11 Short Lessons by Daniel Friedman (2010). I know of Professor Friedman’s work from teaching law school where he received very high marks from students. This is a short overview and introduction to contracts, torts, and insurance from the construction perspective. It also covers issues relating to contracts and business entities. A great way to introduce yourself to the construction law field in a US context.
Builder’s Guide to Accounting by Johnson and Poirier (2007). A great book designed for contractors rather than lawyers, you can expect to learn about everything from profit margins to financial ratios, to financial statements and accounting principles in this easy to understand book. It also discusses tax issues and the cash-based accounting systems used by contractors.
Construction Law Advanced
For experienced practitioners, both legal and non-legal, there are a number of texts that probe into the heart of both construction and the law. Davison on Construction Insurance provides, as the title suggests, a practically-oriented commentary on construction insurance in the UK. Originally released in 1995, the current edition has been substantially revised and updated to reflect modern developments in construction and insurance. Chappell’s Legal Guide for Architects, Clerks of Works and Contractors is the result of traditionally disparate sections of the construction industry uniting to create what is now the leading legal guide for all professionals involved in building design and construction. This new work follows on from the well-known Architects’ Legal Handbook, widely regarded as the essential legal textbook and reference book for architects. The Construction Contracts: Law & Practice series is an advanced text published for the late undergraduate and postgraduate market. It provides readers with a broad overview of the various topics included within a non-contentious construction contract. It also considers both the main management and procurement systems, and the integrated nature of the building process, whilst also giving a general overview of the legal claims likely to arise on a project and their successful prosecution and defence. In addition to these, there are many titles that have been developed over the years to pass on expertise in specific areas or to provide commentaries on the development of legislation, such as the Housing Grants, Construction and Regeneration Act 1996 and its amendments by the Local Democracy, Economic Development and Construction Act 2009.
Contracts and Case Law
For those who revel in the nuances of construction law, the way that contracts shape the legal landscape is incredibly interesting. At its roots, construction law is a field of contracts, and some practitioners devote their whole lives to studying the evolution of the law through binding legal precedents.
Two books that could quickly launch one’s investigations into construction law are: Construction Delays: Understanding Them Clearly, Creating Strategies to Minimize Their Impact by Michael T . Callahan and Randolph Rapp; and Construction Contracts: Law, Theory and Practice by Russell D. Lawhead, Michael L. Glover and Joseph Tashjian. Each book provides a detailed examination of how contracts, and contract interpretation, can impact a construction project. For lawyers new to construction law, these books can provide invaluable insight into what types of clauses you might see and what they mean. The books can also be a useful guide for those looking to strengthen their contract negotiation skills.
Authorities on construction law
The realm of construction law is richly populated with insightful and erudite authors who have captured their industry-wide expertise in accessible and thought-provoking prose. In this section, we look at some of the leading authors on construction law and examine why their works are enjoyable to read, as well as useful and educational.
We begin with Peter Costello’s "Construction Law Handbook". As an author of "Construction Law", a leading text on the subject for many years, Peter has had the practical experience of operating at the cutting edge of the industry and can provide the reader with the unique, "real-world" insight that can only be found in someone who has been there.
Peter is a Fellow of both the Chartered Institute of Arbitrators and the Royal Institution of Chartered Surveyors, sits as an Arbitrator and Adjudicator, specializes in Construction Law and is a Mediation Advocate, Mediator and Conciliator accredited by the Centre for Effective Dispute Resolution. He has worked in the area of Construction Law and Engineering for many years.
When Peter said that he wrote the "Construction Law Handbook" with the non-lawyer in mind, it was an understatement. This is a well-balanced introduction to the area of Construction Law that is of immense benefit to the practitioner. Whilst it is not an easy read for someone who has no prior knowledge of Construction Law it is not intended to be. It provides an invaluable reference text for practitioners and non-lawyers.
The author, Peter Costello, is probably the leading Construction Lawyer practising in the UK today. His portfolio of work includes acting in high profile public enquiries, as an Expert Witness, Arbitrator, Mediator and Conciliator. Full spectrum Construction Law coverage is provided in this groundbreaking book including: Contract Formation; Insurance & Bonding; Latent Conditions; Construction Programming; Completion; Payment; Contract Administration and Management; Contractual Problems and Claims; Contract Disputes and Construction Adjudication.
Like "Construction Law", "Construction Law Handbook" is respected in the industry and is the book of choice for most Construction Lawyers.
"The Engineer’s Guide to Arbitration and Dispute Resolution" is an excellent book. It is very good value for money and covers a huge amount of material for its £45 price tag. The book is essentially aimed at Engineers who wish to obtain a greater understanding of the dispute resolution processes and arbitration, but it is also useful for lawyers who are involved in disputes in the construction industry. That is not because it contains minutiae of the law or detailed procedures, but instead because it is honest enough to point out the weaknesses and failures of each process as well as the strengths. It is refreshing to read a book in the construction industry which does not simply trumpet the benefits of what it is trying to sell. As the author himself admits later on in the book: "The author has long believed that construction dispute resolution processes other than litigation, such as ADR, are ineffective when compared with traditional forms of dispute resolution." However, he goes on to point out that some of the weaknesses can be overcome if the users are realistic about their expectations and limitations.
It is excellently written, easy to understand and packed with case studies and examples from around the world. Despite being a relatively slim volume the author has managed to pack a huge amount of information into every chapter. As mentioned the book is mostly aimed at Engineers and those working in the construction industry, however it would also be useful to lawyers as well. In fact this book is much more readable than many other books published by legal publishers.
"Construction Law" is a must for the library as it is a complete guide to the practice of Construction Law in England. Its coverage of cases is impressive, being almost entirely up-to-date and accurate. The author’s excellent writing style strongly adds to this exciting construction litigation guide. It is well worth the money it costs.
The author, Peter Costello is a barrister and a partner in the London office of an international law firm. His other publications include ‘Construction Law Handbook’ and ‘Construction Adjudication: The New Law and Procedure’. He has acted as Counsel in many high-profile Construction Law, Engineering and Professional Negligence cases, and is an experienced Arbitrator and Mediator. He is also a member of the Academy of Experts.
Determining the right construction law book
With such a plethora of construction law books available, it can be challenging to choose the one that best fits your needs. When selecting a construction law book, you want to consider authorship, depth of content, and how the topics of the book relate to current legal issues in the construction industry. The majority of construction law books are written by seasoned construction lawyers who have spent years dealing with the various aspects of the law relating to the construction industry. Look for authors who have not only written respected texts but also consulted on construction projects, either as counsel or expert witnesses. Practicing lawyers often have insights to information not generally published in other texts , and such insights can be invaluable to other legal practitioners and to owners, contractors, architects and engineers. Also check to see if the author has a bias and to whom he or she is writing. Is the author expecting the reader to be a lawyer? Is the author expecting the reader to be an architect? If the reader is neither, he or she could be left out in some areas. Some authors have even more specialized target audiences, so be sure to select a book that actually speaks to you. While many construction law books are targeted toward construction industry professionals, the most appropriate audience may even be owners who are seeking an understanding of what is involved in a particular kind of project.