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ARE_PracticeManagement > LAW IN PRACTICE - ARCHITECTURE > Flashcards

LAW IN PRACTICE - ARCHITECTURE Flashcards

1
Q

LEGAL STRUCTURES OF ARCHITECTURE FIRMS

A
  1. Sole Proprietorship
  2. General Partnership
  3. Limited Liability Partnership
  4. Professional Limited Liability Partnership
  5. Subchapter C Corporation
  6. Subchapter S Corporation
  7. Professional Corporation
  8. Limited Liability Corporation
  9. Professional Limited Liability Corporation
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2
Q

SOLE PROPRIETORSHIP

A
  1. Ownership: Individual Practitioner
  2. Management: Individual Practitioner
  3. Liability Protection: none
  4. Tax Treatment: Does not file a federal return or pay taxes; income/losses passed through to individual
  5. Secretary of State Filings: None
  6. State Registration Board Filings: Typ not required
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3
Q

GENERAL PARTNERSHIP

A
  1. Ownership: Partners
  2. Management: Partners
  3. Liability Protection: None
  4. Tax Treatment: Files federal return, but does not pay taxes; income/Loses passed through to individual owners
  5. Secretary of State Filings: None
  6. State Registration: Many states req. Certificate of Authority COA; Varying req. for licensing partners
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4
Q

LIMITED LIABILITY PARTNERSHIP (LLP)

A
  1. Ownership: Partners
  2. Management: Partners
  3. Liability: Partners personally liable but typ protected agains other claims (except extreme wrongdoing)
  4. Tax Treatment: Files federal return, but does not pay taxes; income/Loses passed through to individual owners
  5. Secretary of State Filings: LLP certificate for formation state and foreign states
  6. State Registration: Many states req. COA, Varying req. for licensing partners
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5
Q

PROFESSIONAL LIMITED LIABILITY PARTNERSHIP (LLP)

A
  1. Ownership: Partners - all typ licensed
  2. Management: Partners - all typ licensed
  3. Liability: Partners personally liable but typ protected agains other claims (except extreme wrongdoing)
  4. Tax Treatment: Files federal return, but does not pay taxes; income/Loses passed through to individual owners
  5. Secretary of State Filings: LLP certificate for formation state and foreign states
  6. State Registration: Many states req. COA, all partners typ licensed; LLP may need min lvl of prof liability insurance (PLI)
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6
Q

SUBCHAPTER C CORPORATION (C CORP)

A
  1. Ownership: Stockholders
  2. Management: Directors, Officers
  3. Liability: Stockholders may be personally liable for their own prof negligence but typ protected against other claims (except extreme wrongdoing)
  4. Tax Treatment: Files federal return, pays taxes; profits passed through as dividends to stockholders, who pay double taxation on individual returns
  5. Secretary of State Filings: Articles of organization, for formation state and foreign states
  6. State Registration: Many states req. COA; varying req. for licensing of stockholders, directors, and officers; a few states permit only professional corporations
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7
Q

SUBCHAPTER S CORPORATION (S CORP)

A
  1. Ownership: Stockholders (no more than 100 who must be U.S. citizens or resident aliens)
  2. Management: Directors, Officers
  3. Liability: Stockholders may be personally liable for their own prof negligence but typ protected against other claims (except extreme wrongdoing)
  4. Tax Treatment: Files federal return, but does not pay taxes - income (and some losses) passed through to individual stockholders
  5. Secretary of State Filings: Articles of organization, for formation state and foreign states
  6. State Registration: Many states req. COA; varying req. for licensing of stockholders, directors, and officers; a few states permit only professional corporations
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8
Q

PROFESSIONAL CORPORATION

A
  1. Ownership: Stockholders - all must typ be licensed
  2. Management: Directors, Officers - all must typ be licensed
  3. Liability: Stockholders may be personally liable for their own prof negligence but typ protected against other claims (except extreme wrongdoing)
  4. Tax Treatment: Files federal return, but does not pay taxes - income (and some losses) passed through to individual stockholders
  5. Secretary of State Filings: Articles of organization, for formation state and foreign states
  6. State Registration: Many states req. COA; all stockholders, directors, and officers must typ be licensed; corp may need to carry min. lvl of PLI
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9
Q

LIMITED LIABILITY CORPORATION (LLC)

A
  1. Ownership: Members
  2. Management: Managers
  3. Liability: Members may be personally liable for their own prof. negligence but typ. protected against other claims (except for extreme wrongdoing).
  4. Tax Treatment: If LLC selects, partnership - files federal return bu does not pay taxes - income/losses passed through to individual owners
  5. Secretary of State Filings: LLC certificate, for formation state and foreign states
  6. State Registration: Many states req. COA, carying req. for licensing of members and managers; a few states permit only professional LLCs
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10
Q

PROFESSIONAL LIMITED LIABILITY CORPORATION (LLC)

A
  1. Ownership: Members - all typ. licensed
  2. Management: Managers - all typ. licensed
  3. Liability: Members may be personally liable for their own prof. negligence but typ. protected against other claims (except for extreme wrongdoing).
  4. Tax Treatment: If LLC selects, partnership - files federal return bu does not pay taxes - income/losses passed through to individual owners
  5. Secretary of State Filings: LLC certificate, for formation state and foreign states
  6. State Registration: Many states req. COA; all members and managers typ must be licensed; LLC may need min. PLI
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11
Q

6 ELEMENTS OF STRATEGIC BUSINESS PLAN

A
  1. MISSION
  2. VISION
  3. ISSUES AND INITIATIVES
  4. GOALS
  5. STRATEGIES
  6. ACTION PLANS
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12
Q

RETURN ON OVERHEAD (ROO)

A

calculated by dividing the profits contributed by a branch office by the amount of overhead expense incurred at that office.

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13
Q

CERTIFIED DESIGN FIRM ADMINISTRATOR (CDFA)

A

credential offered by the society for design administration recognizes individuals who have demonstrated proficiency office admin at design firms

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14
Q

SWOT

A

Strengths
Weaknesses
Opportunities
Threats

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15
Q

JURISDICTION

A

the court has authority to hear a case and impose a remedy

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16
Q

A CASE CAN BE BROUGHT TO FEDERAL COURT

A

if dispute involves the US Constitution or federal statue, or is between citizens of different states and involves an aggregate claim of more than &75,000

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17
Q

STARE DECISIS

A

policy of adhering to principles established by decisions in earlier cases

Latin for “let the decision stand”

followed by ‘common law’ but not in ‘civil law’

18
Q

UNITED STATES CODE (U.S.C)

A

The code of laws of the United States of America is the official compilation and codification of the general and permanent federal statues of the United States.

It contains 53 differens subjects or “Titles” and published every 6 years

states often make amendments and adjustments to adopted codes from this library

19
Q

UNIFORM CODES

A

set of model statutes related to a particular subject that can be adopted by the states. Once adopted by a state, the code becomes the law in the state.

A state may adopt all or part of a uniform code.

The International Building Code (IBC) is an example of a uniform code. It is published by the International Code Council (ICC).

20
Q

CHOICE-OF-LAW

A

a clause that indiates which state’s law will goern any disputes. Generally, it must be either the stae in which the project is located or the stae in which either party attached to the contract is located.

21
Q

CIVIL LAW

A

deals with disputes between indivisduals, organizations, or government agencies, in which compensation or some other remedy may be awarded to the injured party.

The party that brings the case (plaintiff) is typically awarded money damages if it prevails on its claim against the other party (defendant).

22
Q

CRIMINAL LAW

A

comprises rules prohibiting conduct that threatens, harms, or otherwise endangers the safety and welfare of the public, and sets out the punishment to be imposed on those who break these rules.

Criminal lawsuites are filed by the government against individuals or organizations that have violated criminal statutes.

23
Q

PAROL EVIDENCE

A

evidence of the parties’ discussions (oral or written) before and at the time the contract was signed

24
Q

TORT LAW

A

based on legal obligations created by statute or through judicial opinions. The goal of tort law is to protect people from unexpected and overwhelming misfortunes through the fault of others and to compensate them when such misfortunes occur.

  1. Intentional Tort (often uninsurable (assault, ex)
  2. Unintentional Torts (negligence)
  3. Strict Liability Torts
25
Q

PUNITIVE DAMES / EXEMPLARY DAMAGES

A

designed to punish malicious wrondoers and deter others from behaving in a similar fashion.

26
Q

COMPENSATORY DAMAGES

A

attempt to make the victim whole by placing a monetary value on the harm done.

27
Q

LEGAL DOCTRINES

A

framework or set of rules established by precedent in the common law, through which judgments can be determined on a particular issue.

28
Q

CAUSE OF ACTION

A

a legal theory which a plaintiff brings a lawsuit is referred to as the cause of action

plaintiff initiates a lawsuit by filing a complaint w/ the approp court - The complaint must state both the cause of action for the injury that the plaintiff claims and the legal remedy - The defendant must file an answer to the complaint within a certain number of days

29
Q

ACTUAL VS PROXIMATE CAUSATION

A

actual is also refrred to as ‘cause in fact’ means teh injury would not have happened ‘but for’ the defendant’s action.

Proximate causation means that the injury is sufficiently related to the defendants conduct that liability should attach - in most states proximate cause is based on foreseeability

30
Q

MISREPRESENTATION IN TORT LAW

A

the tort that arises most often in the construction industry

The party alleging injury must have relied on the misrepresentation, the reliance must have been reasonable, and the party must have suffered its injury as a result of this reliance.

Misrepresentation can either be negligent or intentional; intentional representation is referred to as fraud

31
Q

PERFORMANCE BOND AND PAYMENT BOND

A

Often the owner’s construction lender will require the contractor to provide a performance bond and payment bond

Performance Bond ensures that funds will be available to complete the project if the contractor defaults

Payment Bond ensures funds will be available to pay subs and suppliers if the contractor fails to do so

32
Q

CONSTRUCTION LOANS

A

a loan is used to pay for construction and the developer often needs a ‘take-out-loan’ to repay the original loan used for construction.

33
Q

FEDERAL ACQUISITION REGULATION (FAR)

A

the process by which the fed govt acquires goods and services - collectively referred to: Federal Acquisition Regulation System.

Implement the laws passed by Congress to govern acquisition planning, contract formation, and contract administration.

Purpose: consolidate agency acquisition regulations into one set of regulations - however, almost every department has supplemental regulations

FAR and its uspplements comprise Title 48 of the US Code of Federal Regulations (CFR)

34
Q

Christian Doctrine

A

Case, GL Christian and Assoc vs United States

essentially, govt regulations have the force and effect of the law, and govt personnel may not deviate from the law w/o proper authorization

Contractors are expected o know what the law requires as well as the limitations of the authority of govt acquisition personnel

35
Q

OWNER AUDIT RIGHTS

A

fixed-price contract, contractor has no obligation to disclose its costs to the owner

cost-plust contract, owner may insist on the right to audit contractor’s records

36
Q

UNIFORM COMMERCIAL CODE

A

a comprehensive set of laws governing all commercial transactions in the United States.

Not a federal law, but a uniformly adopted state law.

37
Q

the FALSE CLAIMS ACT (FCA)

A

goal was to prevent fraud in govt contracting

enacted 1863 in response to privateering during the civil war - recent years it has been used to combat fraud in the health-care industry

under FCA, contractor can be liable for submitting overstated progress payment requests

38
Q

DIFFERING SITE CONDITIONS CLAUSE

A

purpose: shift the risk of unknown physical conditions to the govt so that contractor does not have to inflate its bid.

Fed procurement regulations require the govt to include a Differing Site Conditions clause in any fixed-price contract that exceeds the simplified acquisition threshold

two types of diff site cond clauses/claims
TYPE I / Conditions Materially Different Than Indicated
TYPE 2 / Conditions of an Unusual Nature

39
Q

WAIVER OF SUBROGATION

A

ex of subrogation: if the contractors insurer was forced to pay the owner for damage caused by a subcontractor, the insurer could sue the subcontractor for reimbursement - unless waiver of subrogation is waived

AIA A201 req owner and contractor to waive their subrogation rights against each other and also req them to include waivers of subrogation in their other contracts

40
Q

MILLER ACT

A

A federal law that req general contractors working on federally funded construction projects to obtain performance and payment bonds.

ARE_PracticeManagement (11 decks)

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