President's Message
by Kevin Becica, PE, PP, CME

            NJSPE is working for you, representing your interests in front of the New Jersey legislature.  John Cantwell, PE, State Vice President has re-grouped the legislative committee to track legislation impacting professional engineers (see Bill Monitor).  The NJSPE Board of Directors has been tracking the Licensed Site Professional legislation in committee and testimony has been given to represent the interest of the Professional Engineering license.  For those of you in the Pinelands, recommendations are being made by NJSPE to change the Pinelands Certification. 
            NJSPE will again be offering the six weeks of Saturday morning PE review classes at Rowan and Stevens Institute for the April PE exam.  Pass the word- every FE that took the NJSPE preparatory class in the fall passed the October exam.  Registration information can be found at www.njspe.org under the Events calendar.
            I encourage you to participate in your local MATHCOUNTS event and Engineers Week events.  Remember why you became an engineer and pass your passion and energy on the next generation. 
            Thanks for your commitment to your profession,

                        Ms. Kevin Becica, PE

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T&M ASSOCIATES’ RICHARD MORALLE
RECEIVES ENGINEER OF THE YEAR AWARD

Middletown, NJ - Richard Moralle, Senior Vice President of T&M Associates, one of the region's top engineering, environmental consulting and planning firms, was a recent recipient of the New Jersey Society of Municipal Engineers’ Engineer of the Year Award at the organization’s 2008 annual luncheon in Atlantic City.

Moralle was awarded for his outstanding commitment to the profession of municipal engineering and in recognition of his longstanding service to the New Jersey Society of Municipal Engineers.  He previously served as president of the New Jersey Society of Municipal Engineers for 2004, and currently serves as liaison to the Society of Professional Land Surveyors and Chairman of the organization’s Storm Water Management Committee. 

“Richard has demonstrated a high degree of professionalism and commitment, earning himself great respect not only among his peers, but also with the industry," said Kevin Toolan, CEO of T&M Associates.

“We extend our congratulations to Richard and wish him continued success as a leader in the field of municipal engineering,” added Toolan.       

As a member of the New Jersey Society of Municipal Engineers, Moralle represents the organization on the New Jersey Department of Environmental Protection’s (NJDEP) Best Management Practices committee for storm water design.  He also is responsible for spearheading an initiative to have Municipal Engineers certify development projects for compliance with the states storm water management rules on land use applications requiring NJDEP permits.

As a Senior Vice President for T&M Associates, Moralle is responsible for the firms land surveying and design services.

Moralle graduated from Stevens Institute of Technology in 1974 with a Bachelor of Engineering in Civil Engineering and the New Jersey Institute of Technology in 1984 with a Master of Science in Civil Engineering.  He is a Licensed Professional Engineer, Professional Land Surveyor and Certified Municipal Engineer.  He lives in Fair Haven, NJ with his wife Kathy and three sons.

Founded in 1966, T&M Associates is one of New Jersey’s top engineering, environmental consulting and planning firms. The company has built a strong reputation for providing comprehensive professional services statewide to both the public and private sectors. Based out of Middletown, NJ, with regional offices in Toms River, Clifton and Moorestown, NJ; Plymouth Meeting, PA; and San Juan, Puerto Rico, T&M continues to grow as a leader in the areas of transportation, environmental, civil, site and municipal engineering.

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2008-2009 MathCounts Program

Chapter Competition:  February 7, 2009 snow date February 14, 2009

State Competition:  March 21, 2009 snow date March 28, 2009

Directions to the competition sites can be found online at: http://mathcounts-nj.org/directions_to_competition_sites.htm

We need of volunteers to help proctor the exam, to grade tests & to help assist onsite.  For additional details about the program, or to sign up & help out in your regional, please contact the MATHCOUNTS Regional Coordinator in your area:

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Construction Liens: Strict Requirements for Cost Effective Protection
By: Sarah M. Samp, Esq., Peter J. Wolfson, Esq., and Douglas R. Henshaw, Esq.

In this difficult economy, filing a construction lien is a relatively cost effective tool available to contractors, subcontractors, and sub-subcontractors that provides leverage to obtain payments owed on projects and converts the unsecured debt into a secured debt.  New Jersey Construction Lien Law, N.J.S.A. 2A:44A-1 et seq., sets forth stringent filing requirements for both residential and non-residential construction projects that must be strictly followed.  One minor error or misstep could invalidate an otherwise properly filed lien and subject the party filing the lien to penalties.  This article sets forth the strict filing requirements, with a particular emphasis on the enhanced filing and arbitration requirements applicable to residential construction projects, and a discussion of the priority benefits for contractors, subcontractors, and sub-subcontractors who utilize the filing of a Notice of Unpaid Balance (“NUB”) for non-residential projects.

Who is eligible to file a lien?

Generally, a contractor, subcontractor, or sub-subcontractor that conducted improvements on real property pursuant to a written contract can file a construction lien against the owner of real property.  N.J.S.A. 2A:44A-3.  A construction lien is the New Jersey equivalent to a mechanic’s lien.  A party is eligible to file a construction lien must fall within the following first three levels, or tiers, in the construction process:

• First Tier – the prime contractor that has a contractual relationship with the owner.  Architects, engineers, and surveyors that have a contractual relationship with the owner ordinarily are included within this first tier. 
• Second Tier – the subcontractor or supplier that has a contractual relationship with the prime contractor. 
• Third Tier – subcontractors or suppliers in contract with the subcontractor that has a contractual relationship with the prime contractor.  Suppliers to suppliers do not fall within this third tier.

Any contractors or suppliers outside of these three tiers are not eligible to file a construction lien.
The party filing a construction lien must have provided work, services, material, or equipment pursuant to a written contract that outlines the duties of each contracting party.  Id.at 2A:44A-2 and -3.   The statute defines the “owner” of real property as “any person, including a tenant, with an estate or interest in real property who personally or through an authorized agent enters into a contract for improvement of the real property.”  Id.  If the lien is to be filed against a tenant “and the contract for improvement has not been authorized in writing by the owner of a fee simple interest in the improved real property, the lien shall attach only to the leasehold interest of the tenant.”  Id.at 2A:44A-3.  It is important to note that the Construction Lien Law only applies to private construction projects.  If a contractor wishes to file a lien for a public work project in which the contractor entered into a contract with a public agency, the New Jersey Municipal Mechanic’s Lien Law will apply.  See id. 2A:44-125 et seq.

Filing a Construction Lien

Pursuant to New Jersey’s Construction Lien Law, the amount of the lien claim is either limited by the contract price or the value of the unpaid work, services, material, or equipment provided under a contract, whichever is less.  Id. at 2A:44A-9.  The lien must be filed within “90 days following the date the last work, services, material or equipment was provided for which payment is claimed.”  Id.at 2A:44A-6.  Therefore, it is important to keep detailed records of the dates of work provided under the contract.  The lien must be filed with the county clerk in the county where the real property is located.  Id.  The party filing the lien must sign, acknowledge, and verify the lien by oath.  A lien filed out of time, in the wrong form, or with an incorrect county clerk will be invalid and unenforceable. 

Proper filing is not accomplished by simply mailing the lien form to the county clerk.  Under the Construction Lien Law, the lien is not filed until the county clerk actually receives the construction lien form and records and indexes the lien.  Id.at 2A:44A-2.  Since the recording process may not occur on the day the clerk receives the lien, the party filing the lien should not wait until the last day of the 90 day time period to file the lien.  In addition to filing the lien with the county clerk, the claimant must serve the owner and any affected contractor or subcontractor within ten (10) days of filing the construction lien with the county clerk.  Id.at 2A:44A-7. 

Enhanced Filing Requirements for Residential Construction Projects

Construction Lien Law provides for enhanced filing requirements if the project is a “residential construction contract.”  If the lien requested is related to a “residential construction contract,” then the party filing the lien must file a Notice of Unpaid Balance and Right to File Lien (“NUB”) prior to filing the construction lien claim.  Id. at 2A:44A-20 and 2A:44A-21.  The NUB provides additional protection to residential property owners and potential purchasers of residential property.  A “residential construction contract” is

any written contract for the construction or improvement to a one- or two- family dwelling, or any portion of the dwelling, which shall include any residential unit in a condominium…, any residential unit in a housing cooperative, any residential unit contained in a horizontal property regime…, and any residential unit contained in a planned unit development….”  

Id.at 2A:44A-2.  Courts recently provided clarification regarding the scope of projects that qualify as “residential construction contracts.”  Specifically, the Law Division held that a townhouse development qualified as a “residential construction contract” and required the filing of a NUB and a demand for arbitration.  A. Fiore Services, Inc. v. Pottersville Properties Development, LLC, Docket No. SUS-L-26-05 (N.J. Sup. Ct. Sussex Cty., March 28, 2005).  And more recently, the United States District Court for the District of New Jersey upheld the Bankruptcy Court’s decision that “contracts for large-scale residential construction projects with numerous dwelling units…constitute ‘residential construction contracts’…”.  See Michael J. Wright Construction Co., Inc. v. Kara Homes, Inc., U.S. Dist. Court (DNJ), Civil Action. No. 07-5027 (JAP) (September 25, 2008).  The legislature included the NUB requirement for residential properties to provide residential consumers with additional protection against purchasing encumbered property.  N.J.S.A. 2A:44A-21(a) (protecting consumers in the purchase of homes free from encumbrances).  Given these recent judicial decisions, “residential construction contracts” are not limited to single or two-family homes, but instead include contracts to provide work to numerous units, or a single unit, within a large-scale residential development.

The NUB must be filed with the appropriate county clerk and then served on the owner of the property and any affected contracting parties within ten (10) days of filing.  N.J.S.A. § 2A:44A-21(b)(2).   Upon filing the NUB, the party filing the NUB must also simultaneously serve a demand for arbitration on the owner and fulfill all the requirements and procedures of the American Arbitration Association (“AAA”), or other mutually agreed upon alternative dispute resolution process.  Id.at 2A:44A-21(b)(3).  The arbitrator must issue a decision on the demand for arbitration within 30 days of receipt of the demand.  Id. at 2A:44A-21(b)(6).  The arbitrator’s determination will only address whether the party that filed the NUB complied with the NUB requirements, the validity of the proposed lien and the amount of the lien claim, and the allocation of the arbitration costs.  Id. at 2A:44A-21(b)(4).    The party that filed the NUB must then file the lien claim within 10 days of receiving the arbitrator’s determination.  Failure to strictly comply with the NUB and arbitration requirements is fatal to the validity and enforceability of residential construction contract liens. Michael J. Wright Construction Co., Inc. v. Kara Homes, Inc., U.S. Dist. Court (DNJ), Civil Action. No. 07-5027 (JAP) (September 25, 2008) (invalidating liens because claimant failed to file a NUB and perfect liens on a project that qualified as a “residential construction contact”).

The filing of a NUB cannot substitute for the timely filing of a construction lien.  A NUB does not create a construction lien, but instead preserves the priority right of the later filed construction lien.  Filing the NUB preserves the claimant’s priority right by placing potential purchasers and encumbers of the property on notice of the claimant’s potential lien.  Proper filing of the NUB ensures that the priority of the subsequently filed construction lien will revert back to the date the NUB was filed.  Id. at 2A:44A-20(c).

The timing for filing the lien claim can be complicated when a NUB is filed because the lien claim must still be filed within the 90-day time period from the last day work or services were provided under the contract.  Given that the filing of the NUB includes the 30-day period for the arbitrator’s decision and the 10-day period to file the lien after the arbitrator’s decision, the lien claimant must file the NUB no later than 50 days after the completion of work under the contract.

Available Option for Non-Residential Projects

Although a NUB is required for “residential construction contracts,” contractors that choose to file a NUB on a non-residential project can obtain the priority benefit of the NUB for the subsequently filed construction lien.  Further, if the claimant has any question as to whether or not the project qualifies as a “residential construction contract,” the contractor should take the extra precaution of filing a lien in an effort to avoid the irreversible mistake of failing to file a NUB on a project that is later deemed a “residential construction contract.”

Enforcement of Construction Lien

            The lien claimant of a properly filed and served construction lien has the right to enforce the lien.  The claimant must initiate a civil action in the Superior Court in the county where the property is located to enforce the lien within one year of the date the work or services were last provided.  Id.at 2A:44A-14(a).  The owner of the property may also force the claimant to enforce the lien by making a written demand for the claimant to bring an enforcement action within 30 days of the written demand.  Id.When an action is commenced to enforce the lien in the Superior Court, a Notice of Lis Pendens must also be filed with the county clerk or register in the county in which the property is located.  Id. at 2A:44A-14(c); see also N.J.S.A. 2A:15-6 et seq.  If the party that filed the lien fails to bring the action within either the appropriate one-year, or 30-day period, the claimant forfeits the right to enforce the lien.  Id. at 2A:44A-14(b). 

Conclusion

Construction liens provide much needed protection and leverage for contractors, subcontractors, and sub-subcontractors.  To obtain the benefits of a construction lien, the claimant must strictly comply with the filing requirements.  If a project may qualify as a “residential construction contract,” a claimant should consider filing a NUB and a demand for arbitration to ensure that the lien is not later deemed invalid.  Additionally, given the current economy, claimants for non-residential contracts should give serious consideration to filing a NUB and a demand for arbitration to obtain the added benefit of “locking in” the priority right at the earliest point in the statutory lien process.

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T&M Associates Continues To Grow With New Promotions  

Middletown, NJ - T&M Associates, one of the region's top engineering, environmental consulting and planning firms, continues to grow with the promotion of four employees.

“We are extremely proud of the hard work and dedication displayed by these individuals," said Kevin Toolan, President & CEO of T&M Associates. “Their personal achievements exemplify T&M’s overall commitment to professional excellence in the engineering and planning industry.” 

The following is a list of T&M Associates’ employees who recently received promotions:

Peter A. Drinkwater, P.E., who has over 14 years of education and work experience in various aspects of civil, highway and traffic engineering and design, has been promoted to the position of supervising engineer in the company’s Transportation Division. He lives in Somerset, NJ.

David M. Marks, P.E., C.M.E., who has over six years of experience in various civil engineering disciplines which include water resources, transportation and municipal engineering.  He has worked as a design engineer and project manager responsible for numerous road improvement, park rehabilitation and drainage improvement projects. Marks currently serves as the Borough Engineer and Planning Board Engineer in the Borough of Atlantic Highlands, N.J., and assists with professional engineering services to the Borough of Rumson and the Township of Middletown, N.J. 

Eric E. Nathanson, who has over 12 years of land use planning and environmental engineering experience in both the public and private sectors, has been promoted to the position of supervising environmental scientist.  His expertise includes coastal and freshwater wetland impact assessment and permitting, large and small-scale dredging projects, and wildlife surveys.  Nathanson lives in Long Branch, N.J.

Albert D. Yodakis, P.E., C.M.E., who has over a decade of professional experience in municipal and civil engineering, has been promoted to the position of assistant division manager in the company’s southern regional office. He currently serves as the Assistant Engineer in Manchester and Jackson, N.J., and is the Planning Board Engineer in Manchester and Manasquan, N.J. Yodakis lives in Neptune, N.J.

Founded in 1966, T&M Associates is one of New Jersey’s top engineering, environmental consulting and planning firms. The company has built a strong reputation for providing comprehensive professional services statewide to both the public and private sectors. Based out of Middletown, N.J., with regional offices in Toms River, Clifton and Moorestown, N.J.; and Plymouth Meeting, P.A. T&M continues to grow as a leader in the areas of transportation, environmental, civil, site and municipal engineering.

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