Fairfield Connecticut Building Expert Directory

Best Practices: Commercial Lockouts in Arizona

March 19, 2024 — Patrick Tighe - Snell & Wilmer Real Estate Litigation Blog
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.

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Reprinted courtesy of Patrick Tighe, Snell & Wilmer
Mr. Tighe may be contacted at ptighe@swlaw.com

Preparing for the 2015 Colorado Legislative Session

November 26, 2014 — David M. McLain - Colorado Construction Litigation
As Colorado starts to prepare for the 2015 legislative session, construction defect reform is shaping up to be another key issue under the Capitol dome. Once again, the Homeownership Opportunity Alliance (HOA) will be leading the charge. The HOA is a coalition of Coloradans working to open the doors to homeownership by: 1) protecting consumers from unknowingly entering into litigation and establishing solid processed through which homeowners and developers can work together to achieve a positive resolution to identified defects in construction, and 2) increasing the supply of attainable, affordable housing while protecting the rights of consumers to take legal action. Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Smart Contracts Poised to Impact the Future of Construction

November 12, 2019 — Frederick D. Cruz and Seth Wamelink - Construction Executive
In August 2018, the State of Ohio passed legislation making it easier for businesses in Ohio, including the construction industry, to use blockchain technology in business transactions, which can result in significant savings and increased efficiency if used correctly. Specifically, Senate Bill 220 amends the Uniform Electronic Transactions Act (Ohio Rev. Code. 1306.01, et seq.) and ensures that records (or signatures) secured through blockchain are legally binding. With the enactment of this bill, Ohio has joined several other states to allow their businesses to take advantage of this budding technology. While the implications of this enactment are widespread, the use of “smart contracts” utilizing blockchain technology is particularly helpful in the construction industry to streamline certain processes and increase efficiency. What is Blockchain? While blockchain technology is most commonly associated with cryptocurrency (e.g., Bitcoin), the technology has far greater applications as it can be used to “eliminate the middle-man” in a variety of transactions across a broad spectrum of industries. At its core, blockchain is a decentralized ledger that allows transacting parties to interact directly (i.e., peer-to-peer) in a secure manner. Essentially, the blockchain “ledger” is where users record transactions. These transactions are then verified, viewed, and shared with others in the network. The information is stored across a peer network and allows for approved users to view the data simultaneously. It is often analogized to using GoogleDocs, where multiple people can access and edit the same document simultaneously. While that is an easy comparison, blockchain itself is a bit more complex. Reprinted courtesy of Frederick D. Cruz & Seth Wamelink, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Cruz may be contacted at frederick.cruz@tuckerellis.com Mr. Wamelink may be contacted at seth.wamelink@tuckerellis.com Read the court decision
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Ensuing Loss Provision Found Ambiguous

April 25, 2012 — Tred R. Eyerly - Insurance Law Hawaii

After the insurer denied coverage in a homeowner’s policy for construction defects under various exclusions, the court found the ensuing loss provision was ambiguous.Kesling v. Am. Family Mut. Ins. Co., 2012 U.S. Dist. LEXIS 38857 (D. Colo. March 22, 2012).

After purchasing a home from the sellers, the insureds noticed problems with the deck of the home. Massive cracking appeared, causing lifting and leaking on the deck and water running through the exterior foundation wall into the home. There was also damage to the roof and crawlspace.

The insureds had a homeowner’s policy with American Family, which covered accidental direct physical loss to property described in the policy unless the loss was excluded. They requested coverage for "conditions, defects and damages." American Family denied coverage because wear and tear, as well as damage to foundations, floors and roofs were excluded. The policy did provide coverage, however, for "any resulting loss to property described . . . above, not excluded or excepted in this policy.

When coverage was denied, the insureds sued American Family.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Third Circuit Limits Pennsylvania’s Kvaerner Decision; Unexpected and Unintended Injury May Constitute an “Occurrence” Under Pennsylvania Law

December 22, 2019 — Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery Blog
The Third Circuit ruled on Friday that differing “occurrence” definitions can have materially different meanings in the context of whether product defect claims constitute an “occurrence” triggering coverage under general liability insurance policies. The Court held in Sapa Extrusions, Inc. v. Liberty Mutual Insurance Company, that product claims against Sapa may be covered under policies that define an “occurrence” as an accident resulting in bodily injury or property damage “neither expected nor intended from the standpoint of the insured.” However, the Court affirmed that coverage was not triggered under policies lacking the “expected” or “intended” limitation, reasoning that, under those policies, there was no question that the intentional manufacturing of Sapa’s product was too foreseeable to amount to an “accident.” The coverage dispute arose from an underlying action in which Marvin, a window manufacturer, alleged that, between 2000 and 2010, Sapa sold it roughly 28 million defective aluminum window extrusions. Marvin alleged that the extrusions, which are metal frames that hold glass window panes in place, began to oxidize and break down shortly after they were installed, causing Marvin to incur substantial costs to fix and replace them. Marvin sued Sapa in 2010 in Minnesota federal court, and the parties settled in 2013. Sapa sought coverage for the settlement from its eight general liability insurers for the period implicated by Marvin’s allegations. The insurers denied coverage and Sapa brought suit in the Middle District of Pennsylvania. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Michelle M. Spatz, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Spatz may be contacted at mspatz@HuntonAK.com Read the court decision
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Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co.

December 20, 2017 — John Chiocca - Florida Construction Law News
The Florida Supreme Court issued its opinion in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., Case No., SC16-1420, which answered the following certified question from the United States Court of Appeals for the Eleventh Circuit: Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a “suit'” within the meaning of the CGL policies issued by C&F to ACI? Read the court decision
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Reprinted courtesy of John Chiocca, Cole Scott & Kissane P.A.
Mr. Chiocca may be contacted at john.chiocca@csklegal.com

If I Released My California Mechanics Lien, Can I File a New Mechanics Lien on the Same Project? Will the New Mechanics Lien be Enforceable?

December 29, 2020 — William L. Porter - Porter Law Group
If I Released My California Mechanics Lien, Can I File a New Mechanics Lien on the Same Project? Will the New Mechanics Lien be Enforceable? In general, the answer to the above questions is “Yes”, but only if you meet the following requirements:

You must only release the mechanics lien itself, but not the “right” to a mechanics lien: There is an important distinction to be made between releasing a mechanics lien and releasing the right to a mechanics lien. Whether you do one or the other will depend on the specific language used in your release. In the case of Santa Clara Land Title Co. v. Nowack and Associates, Inc. (1991) 226 Cal. App.3d, 1558 a “release of mechanics lien” document was recorded TO THE County Recorder’s office which included a statement that the mechanics lien was “fully satisfied, released and discharged”. Based on this language, the court concluded that the mechanics lien claimant had waived its “right” to a further mechanics lien on the same property for the work in question. The court concluded that since the release stated that the claim was “fully satisfied” the right to mechanics lien on the project had forever been waived. The Nowak case can be distinguished from the case of Koudmani v. Ogle Enterprises, Inc., (1996) 47 Cal.App.4th 1650, where the release of mechanics lien only stated that the mechanics lien was “otherwise released and discharged” and not that it was “satisfied”. Based on the distinction drawn from the two cases, a simple mechanics lien release that only releases the mechanics lien itself, but not the “right” to a mechanics lien should be used. At the following link you will find a proper form to achieve this purpose: https://www.porterlaw.com/wp-content/uploads/2019/06/03PRI-Mechanics-Lien-Release.pdf

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Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

City Drops Impact Fees to Encourage Commercial Development

November 08, 2013 — CDJ STAFF
The Orvido, Florida city council wants to encourage commercial development, and they’re willing to do it by discouraging residential development. The impact fees for commercial buildings have dropped sharply, the Orlando Sentinel notes that for a 50,000 square-foot office building, the city is reducing the impact fee from $2,890 to $1,575, a drop of $1,313, nearly half. Meanwhile, the impact fee for single-family homes has seen an increase of seven percent, going from $3,195 to $3.433. The city is clear about its reasons. “We’re very heavy on the residential side. We want to have more high-paying jobs come into the city,” said Keith Britton, a member of the council. Read the court decision
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