CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Erasing Any Doubt: Arizona FED Actions Do Not Accrue Until Formal Demand for Possession is Tendered

July 13, 2017 — Bob Henry - Snell & Wilmer Real Estate Litigation Blog
Clearing up any lingering confusion, in Carrington Mortgage Services, LLC v. Woods, 767 Ariz. Adv. Rep. 4 (June 22, 2017), the Arizona Court of Appeals confirmed that residential forcible entry and detainer actions in Arizona accrue for statute of limitations purposes when a party entitled to possession makes a formal demand for return of possession not when the party could have made a demand for return of possession. In Carrington, the borrowers (the Woodses) remained in property that they had acquired in 2008 but then lost to foreclosure several years later. The original lender obtained title to the property at a trustee’s sale on February 16, 2010, but did not take any action to remove the Woodses at that time. Title to the property was then transferred through a series of transactions over the next six years. Ultimately, Carrington acquired the title and, in 2016, sent a formal “Notice to Vacate” the premises to the Woodses. After the Woodses failed to timely vacate pursuant to the demand, Carrington initiated an FED action to evict them from the property. Read the court decision
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Reprinted courtesy of Bob Henry, Snell & Wilmer
Mr. Henry may be contacted at bhenry@swlaw.com

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Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.

November 21, 2022 — Christian Fernandez - Snell & Wilmer Real Estate Litigation Blog
Liquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to in a variety of ways, such as “earnest money,” a “good-faith deposit,” or a “non-refundable deposit,” but each typically denote a negotiated amount of money that a seller is entitled to retain should a buyer breach a purchase and sale agreement. The purpose of liquidated damages is to provide the parties with certainty when actual damages arising from a breach of contract may be difficult to calculate. Accordingly, liquidated damages provisions alleviate the need for potentially expensive litigation associated with proving damages. While parties are free to negotiate the amount of liquidated damages, the amount must approximate the loss anticipated at the time of contracting, or the loss that actually occurs as a result of a breach. Arizona courts have held that where the amount of liquidated damages is unreasonably large when compared to the anticipated loss or actual loss, the liquidated damages provision is unenforceable as a penalty. A breaching party faced with high liquidated damages will often seek to invalidate the provision as a penalty. If a court agrees, the non-breaching party may still recover damages, but must go through the process of proving such damages. Therefore, when negotiating a real estate contract, consideration should be given as to whether a liquidated damages amount is arbitrarily high when compared to an anticipated loss in the event of a breach. Read the court decision
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Reprinted courtesy of Christian Fernandez, Snell & Wilmer
Mr. Fernandez may be contacted at cfernandez@swlaw.com

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Zillow Seen Dominating U.S. Home Searches with Trulia

July 30, 2014 — Alex Sherman, Jeffrey McCracken and Prashant Gopal – Bloomberg
A Zillow Inc. (Z) purchase of Trulia Inc. (TRLA) would create a dominant search website for U.S. house hunters, reshaping an online industry the companies helped popularize. Zillow, the largest U.S. real estate website, is seeking to buy No. 2 Trulia for as much as $2 billion in cash and stock, according to people with knowledge of the matter. An agreement may be announced as soon as next week, said one of the people, who asked not to be identified because the information is private. Talks are ongoing and may not lead to a deal. The companies help buyers and renters find information on homes, generating revenue by selling advertising and charging Realtors to place their listings prominently. Together the Zillow and Trulia networks had more than 68 million unique visitors in June, representing about 71 percent of all visitors to ComScore’s real estate category. That includes desktop and mobile users, ComScore said. A combination would make it hard for rivals to compete, said Steve Murray, president of Real Trends Inc. in Castle Rock, Colorado. Mr. Sherman may be contacted at asherman6@bloomberg.net; Mr. McCracken may be contacted at jmccracken3@bloomberg.net; Mr. Gopal may be contacted at pgopal2@bloomberg.net Read the court decision
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Reprinted courtesy of Alex Sherman, Jeffrey McCracken and Prashant Gopal, Bloomberg

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Are You Taking Full Advantage of Available Reimbursements for Assisting Injured Workers?

January 08, 2019 — Jonathan Schirmer - Ahlers Cressman & Sleight PLLC
Workplace injuries are an increasingly expensive cost of doing business. While every business does their best to avoid these injuries, even the most prepared employers must deal with them on occasion. The costs associated with these injuries—increased worker’s compensation premiums, decreased productivity, hiring temporary employees, and the loss of experienced workers—can be mitigated by shrewd employers taking full advantage of available assistance programs. Read the court decision
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Reprinted courtesy of Jonathan Schirmer, Ahlers Cressman & Sleight PLLC
Mr. Schirmer may be contacted at jonathan.schirmer@acslawyers.com

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Reasonable Expectations – Pennsylvania’s Case by Case Approach to the Sutton Rule

February 12, 2024 — Melissa Kenney - The Subrogation Strategist
In Mutual Benefit Ins. Co. a/s/o Michael Sacks v. Koser, No. 1340 MDA 2023, 2023 Pa. Super. LEXIS 574, 2023 PA Super 252 (Mutual Benefit), the Superior Court of Pennsylvania discussed whether a landlord’s property insurer could file a subrogation action against tenants that had negligently damaged the landlord’s property. Despite there being more than one clause in the lease holding the tenants liable for the damages, the court held that because there was a provision requiring the landlord, not the tenants, to insure the leased building, the insurer could not subrogate against the tenants. In Pennsylvania, a tenant’s liability for damage to a leased premises in a subrogation action brought by a landlord’s insurer is determined by the reasonable expectation of the parties to the lease agreement. Under this approach, to determine if subrogation is permitted, the court considers the circumstances of the case and examines the terms of the lease agreement. In Mutual Benefit, the tenants leased and resided in a residential home pursuant to a lease agreement. The lease specifically addressed insurance, stating that landlord was responsible for obtaining insurance on the dwelling and the landlord’s personal property, and tenants were encouraged to procure separate insurance for their personal property. The lease also addressed liability for damage to the leased property, stating generally that the tenants were responsible for damage caused by the tenants’ negligence. Read the court decision
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Reprinted courtesy of Melissa Kenney, White and Williams
Ms. Kenney may be contacted at kenneyme@whiteandwilliams.com

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How is Negotiating a Construction Contract Like Buying a Car?

March 01, 2017 — Christopher G. Hill – Construction Law Musings
I know, you’re probably looking for a punchline, and likely thinking something along the lines of “only a construction attorney would be sitting in his office and come up with such an analogy,” but I really do think it’s a good one. When you are buying a car, you look for priorities. Is the color what you want? Is the motor a hybrid or a v-6? Does it have Android Auto? What is the fuel mileage? All of these things may be more or less important to you. If you can get your priorities for a price that is attractive, you will likely let some other less important items, e. g. trunk space or rear seat leg room, slide and purchase the car anyway. Furthermore, you may use these minor items as negotiating points to either get one of the priorities or a lower price. Of course the dealership will want to get its priorities, likely a sale and a profit, when negotiating and will have certain items that it won’t move on just as you have terms that you won’t move on. Much like when you walk onto the car lot, and particularly as a subcontractor looking at a contract from a general contractor, or a GC looking at the contract from the owner of a project, a construction contract presented to you is the starting point. When looking at the contract, be sure to have some non-negotiable items in mind when taking a critical eye to the terms of that contract. Some of these terms may be more or less negotiable depending on your experience with the other party to the construction contract. For instance, striking a pay if paid clause may be less important with a paying party with whom you have a 10 year history without payment problems. On the other hand, if it is your first contract with the other party, a stricter list may be required. So, much like a dealer that you know will stand behind its cars, you may be more willing to take more “risk” in entering a construction contract with a trusted/known owner or GC. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Why You Should Consider “In House Counsel”

September 22, 2016 — Christopher G. Hill – Construction Law Musings
We construction lawyers have occasionally taken it on the chin as one of the obstacles in the construction process. However, I have often argued what I believe to be true, that early consultation with a construction lawyer, before problems occur, is a great way for a construction company to avoid issues and to, yes, save money in the long run. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Consultant Says It's Time to Overhaul Construction Defect Laws in Nevada

February 07, 2013 — CDJ STAFF
Randi Thompson, a Republican political and media consultant, told the Reno Gazette-Journal what she wished Governor Brian Sandoval had said during his recent State of the State address in Nevada. Construction defect litigation was one of the issues that Ms. Thompson said that Governor Sandoval should have addressed. Thompson said that the governor "should have said it's time to get rid of Nevada's horrid construction defect laws." Ms. Thompson said that "these laws extort money from small business subcontractors who likely had nothing whatsoever do to with any real or perceived defect." She attributed the ongoing construction defect scandal in Las Vegas to "bad law." Ms. Thompson said that these issues are unlikely to be addressed, because "the Democrats control both houses in the Legislature" and the issues are "sacred cows to the Democrats' constituents." Read the court decision
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Reprinted courtesy of

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