Seattle Washington Building Expert Directory

Construction Lien Does Not Include Late Fees Separate From Interest

December 30, 2019 — David Adelstein - Florida Construction Legal Updates
Construction liens can include unpaid finance charges. But, what about late fees? You know, the late fees that certain vendors like to include in their contract or purchase order unrelated to finance charges. An added cost for being delinquent with your payment. Can a late fee be tacked onto the lien too? In a recent case, Fernandez v. Manning Building Supplies, Inc., 2019 WL 4655988 (Fla. 1st DCA 2019), a residential owner hired a contractor for a renovation job. The contractor entered into a contract with a material supplier. The terms of the supplier’s contract with the contractor provided that there would be a 1.5% delinquency charge for late payments and it seemed apparent that the delinquency charge was separate from finance charges. Florida Statute s. 713.06(1) provides in relevant portion:

A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor’s contract.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Quick Note: Do Your Homework When it Comes to Selecting Your Arbitrator

July 26, 2017 — David Adelstein - Florida Construction Legal Updates
Many construction contracts contain arbitration provisions. Instead of litigating a dispute arising out of the contract, the parties will arbitrate the dispute per the arbitration provision. There are advantages to arbitration and certain disputes bode well for arbitration. The key is you want to make sure you select the RIGHT arbitrator or arbitrators. Do your homework regarding the arbitrator list presented to you by, say, the American Arbitration Association. Strike out those on the list that either do not have the requisite experience you need to decide the dispute or you believe they are not going to be impartial. For instance, if you want an arbitrator that you think will specifically follow the letter of the law or the precise terms of a contract, select those on the list that meet this requirement; strike out others that do not. The same philosophy would apply if you want an arbitrator to have specific factual knowledge or a factual understanding regarding a driving issue in the dispute. Do not neglect the homework required to select –or try to select — the arbitrator you believe is the most qualified to understand the issues. Now, why is this important? It is important because you need to arbitrate a dispute with the understanding that the arbitrator’s award (decision) is FINAL. There are no appellate rights. None. Vacating an arbitrator’s award is very challenging and the bases to vacate an award are limited and, most of the time, will NOT apply. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

Traub Lieberman Team Obtains Summary Judgment in Favor of Client Under Florida’s Newly Implemented Summary Judgment Standard

August 23, 2021 — Heather Fleming & Gregory H. Lercher - Traub Lieberman
On July 27, 2021, the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida granted summary judgment in favor of a client insurer defended by Traub Lieberman Partner Heather M. Fleming and Associate Gregory H. Lercher in connection with a first party property lawsuit arising from Hurricane Irma that involved multiple, comingled claims, in part resolved via prior appraisal. As of May 1, 2021, Florida state courts have applied a new summary judgment standard after Florida’s longstanding rule was amended by the Supreme Court of Florida. The amendment aligns Florida’s standard with that of the federal courts and the supermajority of states that have already adopted the federal summary judgment standard codified in Rule 56 of Federal Rules of Civil Procedure. The Supreme Court of Florida’s stated goal in adopting the new standard across the Sunshine State was to improve the fairness and efficiency of Florida's civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution. Reprinted courtesy of Heather Fleming, Traub Lieberman and Gregory H. Lercher, Traub Lieberman Ms. Fleming may be contacted at hfleming@tlsslaw.com Mr. Lercher may be contacted at glercher@tlsslaw.com Read the court decision
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Don't Count On a Housing Slowdown to Improve Affordability

June 13, 2022 — Conor Sen - Bloomberg
As mortgage rates continue to rise, all eyes are fixed on the housing market for signs of a potential slowdown. But any slowdown that does materialize won't affect the industry equally because it isn't going to be about fundamental problems with the housing market. Rather, it will be the result of the Federal Reserve intentionally increasing borrowing costs to cool off inflation. The Fed's efforts are happening in the context of a supply-constrained market where homebuilders have been struggling to complete as many homes as they would like. Any negative impact of rising mortgage rates would be felt disproportionately where affordability problems already are the worst — high-cost coastal markets — and then in materials for the early part of the construction cycle, such as lumber. Understanding the nature of the housing challenge is important so that you aren’t tempted to compare the situation with past downturns. For now, at least, there is no broad industry downturn as we’ve seen before in oil and gas or the technology sector that would lead to the housing market suffering in places like Houston or the San Francisco Bay Area. Homeowners haven't taken on too much debt, and there's no inventory glut — quite the opposite, in fact — that would lead to a broad-based downturn. Read the court decision
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Reprinted courtesy of Conor Sen, Bloomberg

Toll Brothers Shows how the Affluent Buyer is Driving Up Prices

July 09, 2014 — Beverley BevenFlorez-CDJ STAFF
John McManus of Big Builder explained how prices per square foot are rising due to an increase in more affluent buyers: “Discretionary buyers—ones with access to cash treasure troves, robust and growing stock portfolios, sovereign wealth in search of anti-inflationary investment, and, for good measure, throw in a smattering of seven-figure income households flush with this year’s bonus payouts—are who, unit by unit, have electrified the housing market’s recovery on the heels of institutional bulk buyers of 2012 and early 2013.” Toll Brothers, according to McManus, “was, is, and will be the organization most committed to home buying’s discretionary buyer.” “Thanks to the demand for luxury, and for three- and four-bedroom places, we’re seeing pricing-per-square-foot get better and better the greater number of square feet we offer,” David Von Spreckelsen, Toll Brothers City Living division president, told Big Builder. Read the court decision
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When is Mediation Appropriate for Your Construction Case?

May 07, 2015 — Christopher G. Hill – Construction Law Musings
Here at Construction Law Musings, I have often discussed mediation as a good alternative to the expense and headaches of litigation. What I have discussed less often are the circumstances in which it is most appropriate to consider or even push for mediation. The obvious and clearest time that mediation must be used is where the contract requires it. Many construction contracts, including those from the AIA (when the parties check the appropriate box) require mediation as a prerequisite to arbitration or litigation. As is almost always the case in Virginia, this clause will be enforced. In short, if your construction contract has such a clause, and despite my reservations about “mandatory mediation,” you need to at least go through the process before moving forward with your construction claim. The more interesting case is where no such clause exists and the parties reach an impasse, sometimes prior to litigation and often after the filing of a construction complaint or demand for arbitration. What questions should you as a construction attorney be asking both to and about your construction clients before attempting mediation? Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Harsh New Time Limits on Construction Defect Claims

April 26, 2011 — Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq.

A recent Colorado Supreme Court decision, Smith v. Executive Custom Homes, Inc., 230 P.3d 1186 (Colo. 2010), considerably shortens the time limit for bringing many construction defect lawsuits. Homeowners and homeowner associations risk losing the right to seek reimbursement from builders, developers and other construction professionals unless they carefully and quickly act upon discovery of evidence of any potential construction defect.

The Statute of Limitations for Construction Defect Claims
Colorado’s construction defect statute of limitations limits the time for homeowners and homeowners associations to bring lawsuits for construction defects against “construction professionals,” including developers, general contractors, builders, engineers, architects, other design professionals, inspectors and subcontractors. The statute requires homeowners and associations to file suit within two years “after the claim for relief arises.” A claim for relief “arises” when a homeowner or association discovers or reasonably should have discovered the physical manifestation of a construction defect.

The two-year time limitation applies to each construction defect separately, and will begin to run upon the appearance of a “manifestation” of a construction defect (which may include, for example, a condition as simple as a roof leak or drywall cracks), even if the homeowner or association does not know the cause of the apparent problem.

The Smith Opinion and its Effect on the Statute of Limitations
In Smith v. Executive Custom Homes, Inc., the plaintiff homeowner, Mrs. Smith, slipped on ice that had accumulated on her sidewalk because of a leaking gutter and suffered injury. When she first noticed the leak, she reported it to her property manager, who reported it to the builder. The builder attempted to repair the gutter, unbeknownst to Mrs. Smith, and she did not notice further problems until approximately one year after she first observed the leak, when she fell and suffered serious injury. She sued the builder within two years of her injury, but nearly three years after she first learned of the leak.

The Colorado Supreme Court dismissed Mrs. Smith’s claims as untimely and held that under the construction defect statute of limitations, the two-year period for suing for injuries due to construction defects begins when the homeowner first observes the physical manifestation of the defect, even if the resulting injury has not yet occurred. The court acknowledged that this ruling could result in “unfair results,” especially if a serious and unforeseeable injury occurs more than two years after the first time the homeowner noticed the problem, and as a result the victim is unable to seek redress from those responsible for the defect.

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Reprinted courtesy of Scott F. Sullan, Esq., Mari K. Perczak, Esq., and Leslie A. Tuft, Esq. of Sullan², Sandgrund, Smith & Perczak, P.C., and they can be contacted through their web site.

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Contractor Changes Contract After Signed, Then Sues Older Woman for Breaking It

September 03, 2015 — Beverley BevenFlorez-CDJ STAFF
Channel 13 Who TV reported, in Winterset, Iowa, Mary Gregory allegedly signed an estimate for hail damage repair to her home, and was later told by the contractor that it was a contract. When a crew showed up to her home to perform the work, she turned them away. Then, Gregory received a letter from an attorney demanding eight thousand dollars for breach of contract. It turns out that the contractor altered the estimate Gregory signed and submitted it to the insurance company. According to Who TV, the altered estimate “contained work that Gregory says she didn’t authorize and a price tag of $32,134.” Jim Nelle, the contractor, admitted that he added to the contract after it was signed. He claims he was only trying to help her. Read the court decision
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