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 BlogClearing 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.
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Bob Henry, Snell & WilmerMr. Henry may be contacted at
bhenry@swlaw.com
The Future of Airport Infrastructure in a Post-Pandemic World
March 21, 2022 —
Cait Horner & Adam J. Weaver - Gravel2Gavel Construction & Real Estate Law BlogIn the wake of the COVID-19 pandemic, many service industries are reevaluating their physical footprint, and the aviation industry is no exception. Opportunities abound for developers, designers, and contractors to update and expand airport terminals to accommodate traditional needs while also meeting the growing demand for more open space (including larger outdoor areas in terminals and larger cargo facilities to meet the needs of Amazon, FedEx and UPS).
The Future of Passenger Terminals
In nearly every service industry, safety and hygiene policies are being overhauled, with a specific emphasis on the desire for more space across the board. Even before the pandemic caused a seismic shift in the way individuals interact with each other, airports and airlines had started reducing the number of unnecessary interactions between travelers and employees by introducing self-service check-in kiosks and contactless ordering at restaurants. The automation inside the airport will only continue to advance.
Reprinted courtesy of
Cait Horner, Pillsbury and
Adam J. Weaver, Pillsbury
Ms. Horner may be contacted at cait.horner@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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Revamp to Nationwide Permits Impacting Oil and Gas Pipeline, Utility and Telecom Line Work
March 29, 2021 —
Alex P. Prochaska, Jones Walker LLP - ConsensusDocsTo avoid delay costs and penalties, contractors involved in pipeline and utilities construction maintenance, repair and removal need to understand how the 43 year old Nationwide Permit (NWP) regime has changed specific to the NWP 12 and what is now required for compliance. This change is important for contractors who construct, maintain, or repair pipelines that cross or impact waters of the United States, including wetlands. NWPs are a useful tool to streamline construction of a pipeline project, but it is important for contractors to know when certain terms and conditions still apply to the particular NWP and those that have been eliminated.
On January 13, 2021, the United States Army Corps of Engineers (the Corps) published a final rule that reissued and modified twelve existing NWPs and issued four new NWPs that will take effect on March 15, 2021.1 The remaining 40 NWPs that were not reissued or modified under this rule will continue under the general conditions and definitions of the January 6, 2017 final rule.
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Alex P. Prochaska, Jones Walker LLPMr. Prochaska may be contacted at
aprochaska@joneswalker.com
The Evolution of Construction Defect Trends at West Coast Casualty Seminar
May 03, 2018 —
Don MacGregor - Bert L. Howe & Associates, Inc.Twenty-five years ago. 1993. On January 23rd, Bill Clinton was sworn in as the 42nd President of the United States. The average cost of a gallon of gasoline was $1.16, a movie ticket cost $4.00, and the average cost of a new home was $113,200.00.
1993 also marked the first of what would be a quarter century of annual seminars hosted by West Coast Casualty Service, and provided to the combined professionals within the construction defect community. As the seminar has grown both in attendance and prominence within this community under the watchful stewardship of David and Coral Stern, much has changed both with regard to the content of the seminar and the climate within which it was presented. A quick look at the topics addressed over the past 25 years of the Construction Defect Seminar provides one with a veritable history of construction defect litigation and insurance coverage trends across the United States and beyond.
While the first seminar was hosted in 1993, my first attendance didn’t occur until 1999, and the first time I was honored to be a panelist would have to wait until 2007. In the subsequent years, I’ve had the opportunity to sit on panels an additional three times, and each one I gained rare and valuable insights into the construction defect community, its willingness to challenge itself, and the amazing professionals we all have the distinct pleasure of working with every day (and whom we sometimes take too much for granted).
In the mid to late 90’s, topics at the seminar included such subjects as the Montrose Chemical Corp v. Superior Court decision (Montrose) regarding a carrier’s duty to defend and the subsequent Stonewall Insurance case that examined the duty to indemnify in the context of construction defect claims. The California Calderon Act of 1997, laying out the roadmap for HOA’s filing construction defect lawsuits was also a topic of discussion and debate within the West Coast “arena.”
The new millennium saw the landmark Aas v. William Lyon decision, which disallowed negligence claims for construction defects in the absence of actual resultant damage. This was followed by Presley Homes v. American States Insurance wherein the court ruled that a duty to defend applies where there is mere potential for coverage and the duty to defend applies to the entire action. Each of these bellwether decisions was addressed contemporaneously by panels at the West Coast seminar, contemporaneously bringing additional dialog to the CD community, from within the community.
2002 brought what has become the defining legislation in California regarding construction defect litigation and a builder’s right to repair. Senate Bill 800 (SB800), and its subsequent codification as Title 7, Part 2 of Division 2 of the California Civil Code, Sections 895 through 945.5 would become the defining framework for similar legislation across the United States. During the course of its drafting, movement through the legislature, and final adoption in January of 1993, many of the questions raised and debated in committees in Sacramento, had already been and were continuing to be addressed by panelists at the West Coast Seminar. How does SB800 work with Calderon? How does it affect the prior Aas decision? What now constitutes a defect, and what are timeframes established within the complex pre-litigation process? Open the pages of the 2002 – 2004 seminar invitations and you’ll see panels comprised of the finest members of the insurance law and coverage communities addressing those very questions (and more)!
As the first decade of the new century drew to a close, a brief review of the WCC invitations from that period suggests a trend towards programmatic analyses of key themes selected for the seminar. In 2008, my second opportunity as a guest speaker, topics included a review of the state of construction defect litigation in a post-SB 800 environment. Panelists offered retrospective insight into the state of right to repair statutes in multiple states, while others offered a glimpse at where the industry might be headed, as similar legislation was enacted across the country. As always, pertinent court decisions bearing on construction defect, both in California, and elsewhere were given unique perspective and additional clarity by multiple panels of gifted speakers. In 2009, claims and coverage were examined from multiple unique perspectives, including that of plaintiff, the policyholder, and the insurer. Wrap policies and the gaps in due to self-insured retention obligations were examined.
As we rapidly approach the end of the second decade of the 21st Century, West Coast Casualty’s Construction Defect Seminar continues to lead the construction defect community as the premier source for information and peer dialog on all matters relating to construction law, coverage, and emerging trends. In 2017, the Seminar tackled such broad subjects as the role of women in the construction industry, claims management, and risk management, challenges raised by wrap versus non-wrap litigation, and the emergent trend of apartment to condo conversions (and the attendant coverage challenges).
This month, beginning on May 16th at the Disneyland Resort, in Anaheim California, America’s largest Construction Defect event kicks off its 25th Anniversary celebration. As has been every year since 1993, the seminar invitation promises insurance, legal, and industry professionals an exciting and informative array of salient and timely panel topics, as well as a stellar faculty of gifted panelists. If this year’s seminar is anything like the past 25 years, this edition of West Coast Casualty’s Construction Defect Seminar will not only be informative and educational, but also a promise for another 25 years of peerless service to the construction defect community.
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Lakewood Introduced City Ordinance to Battle Colorado’s CD Law
September 24, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to The Denver Post, the Lakewood City Council “introduced an ordinance that would make it more difficult for homeowners associations to sue developers for construction defects and give builders more opportunity to fix problems before litigation begins.” A hearing and final vote is scheduled for October 13th.
"If there are defects, we want to get them fixed rather than dragging this through the courts for years," Lakewood Mayor Bob Murphy told The Denver Post. Murphy believes the ordinance will bring “more diverse housing options to Lakewood, especially around stations along the Regional Transportation District’s West Rail Line.” Lakewood’s City Planner Travis Parker also declared that the defects law is to blame for the lack of condos in the area.
However, some believe that “Lakewood is overstepping its bounds as a home-rule city,” according to The Denver Post. "What they're trying to do is use an ordinance to circumvent state law in order to make it impossible for homeowners to seek redress against builders for defects," Molly Foley-Healy an attorney who serves as legislative liaison for the Community Associations Institute's Legislative Action Committee told the Post. “Mayor Murphy needs to incentivize quality construction in Lakewood instead.”
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Ex-Corps Worker Pleads Guilty to Bribery on Afghan Contract
July 26, 2017 —
Tom Ichniowski - Engineering News-RecordA former Army Corps of Engineers contracting official has pleaded guilty to a federal charge that he took $320,000 in bribes from a contractor in exchange for help on a U.S. road contract in Afghanistan, the Dept. of Justice says.
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Tom Ichniowski, ENRMr. Ichniowski may be contacted at
ichniowskit@enr.com
Association Bound by Arbitration Provision in Purchase-And-Sale Contracts and Deeds
January 11, 2022 —
David Adelstein - Florida Construction Legal UpdatesWhen an association files a lawsuit pertaining to matters of common interest, the lawsuit is typically filed as a class on behalf of the owners that make up the association (i.e., the association’s members). How do you deal with an arbitration provision that is included in an owner’s purchase-and-sale agreement or recorded in the deed? The recent opinion in Lennar Homes, LLC v. Martinique at the Oasis Neighborhood Association, Inc., 47 Fla. L. Weekly D15c (Fla 3rd DCA 2021) dealt with this exact issue with a homeowner’s association ruling that the association was required to arbitrate its latent construction defect claims against the developer (homebuilder).
In this case, a community in Miami consisted of 26 townhouse buildings. There was a broad arbitration provision in each owner’s purchase-and-sale agreement that included disputes relating to property damage. Further, with each closing, a special warranty deed was recorded that included a nearly identical arbitration provision.
The association became aware of latent defects relating to the exterior walls of the buildings and filed a lawsuit against the developer (homebuilder). The developer moved to compel the dispute to arbitration which was denied by the trial court because there was no specific agreement between the association and the developer that required arbitration and the lawsuit dealt with matters that the association was obligated to maintain.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
A Brief Primer on Perfecting Your Mechanics Lien When the Property Owner Files Bankruptcy
January 22, 2024 —
William L. Porter - Porter Law GroupOverview of the Mechanics Lien Law
This is a brief description of steps to be taken when the Owner of property on which you have recorded a mechanics lien files bankruptcy.
The California mechanics lien is a powerful tool for contractors, subcontractors and materials suppliers to secure payment of unpaid construction debts. A contractor, subcontractor or materials supplier is allowed to record a mechanics lien on real property, based on the value added to the property by the claimant during the construction process.
The recorded mechanics lien provides the claimant with legal right to force the sale of the improved real property and thereby obtain the funds necessary to pay the delinquent debt. Under the usual procedure, the first step is the recording of the mechanics lien with County Recorder’s office in the County where the property is located. A lawsuit to foreclose on the lien must then be filed in the County Superior Court of that County, within ninety (90) days after the mechanics lien is recorded. The goal of the lawsuit is to obtain a judgment for foreclosure on the mechanics lien in order to force a sale of the property. The net proceeds of the sale will be used to pay the unpaid construction debt secured by the recorded mechanics lien, assuming sale proceeds exceed the amount of senior liens and encumbrances.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
