Cambridge Massachusetts Building Expert Directory

Lien Attaches To Landlord’s Interest When Landlord Is Party To Tenant Improvement Construction Contract

January 03, 2022 — David Adelstein - Florida Construction Legal Updates
If you are a landlord / lessor, then you want to maximize the protections afforded to you under Florida’s Lien Law in Florida Statute s. 713.10. These protections are designed to protect your property from liens for improvements performed by your tenant / lessee. The intent is that if you comply with s. 713.10, then a tenant improvement contractor’s recourse is against the leasehold interest, and NOT against the interest of the real property (or your interest as the landlord / lessor). Needless to say, it is imperative that a landlord / lessor make efforts to comply with this section when a tenant is performing tenant improvements, even when the landlord is contributing money to those improvements. Section 713.10 provides in material part:

(1) Except as provided in s. 713.12, a lien under this part shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement or is thereafter acquired in the real property. When an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor.

(2)(a) When the lease expressly provides that the interest of the lessor shall not be subject to liens for improvements made by the lessee, the lessee shall notify the contractor making any such improvements of such provision or provisions in the lease, and the knowing or willful failure of the lessee to provide such notice to the contractor shall render the contract between the lessee and the contractor voidable at the option of the contractor.

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

Anti-Concurrent Causation Clause Preserves Possibility of Coverage

January 15, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The policy's anti-concurrent causation clause preserved the possibility of coverage when the insurer's motion for summary judgment to disclaim its indemnity obligation for damage caused by Hurricane Sandy was overturned by the Second Circuit. Madelaine Chocolate Novelties, Inc. v. Great Northern Ins. Co., 2018 U.S. App. LEXIS 29821 (Oct. 23, 2018 2nd Cir. ) In 2012, Madelaine Chocolate suffered significant damage to its business due to storm surges created by Hurricane Sandy. Madelaine Chocolate had an "all-risk" policy issued by Great Northern. Madelaine Chocolate filed a claim for property damage of approximately $40 million and business income loss and extra operation expenses of $13.5 million. Great Northern denied most of the claim, reasoning that the storm surge damage was excluded under the policy. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Developer Transition - Maryland Condominiums

June 21, 2017 — Nicholas D. Cowie - Maryland Condo Construction Defect Law Blog
INTRODUCTION “Developer transition” is the process by which the governance of a condominium association is transferred from developer to unit owner control. This article provides a brief overview of the legal requirements that govern the developer transition process for Maryland condominiums. This article also as well as a “transition checklist” for transitioning unit owner-controlled boards of directors. PERIOD OF DEVELOPER CONTROL A developer initially controls an association because it owns all unsold units in the newly created condominium community. As such, the developer has the controlling votes associated with majority ownership and can appoint its own employees as the initial members of the board of directors and thereby control how the condominium association conducts its affairs. This is referred to as the “period of developer control,” during which the developer makes all decisions on behalf of the association. The developer also creates an association’s governing documents, allowing it to dictate, subject to applicable law, the procedures and time periods under which control over the association’s board of directors will eventually be transferred to the homeowners. Read the court decision
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Reprinted courtesy of Nicholas D. Cowie, Cowie & Mott, P.A.
Mr. Cowie may be contacted at ndc@cowiemott.com

Business and Professions Code Section 7031, Demurrers, and Just How Much You Can Dance

February 14, 2022 — Garret Murai - California Construction Law Blog
Fights between owners and contractors under Business and Professions Code section 7031 can get nasty and detailed. An owner’s remedy under Section 7031, as courts have stated, can be “harsh[ ],” “draconian” and even “unjust” and damages can be significant. Panterra GP, Inc. v. Superior Court, 2022 WL 289216 (2022), a case decided this past month, is no different. It even involved a disagreement between the very justices deciding the case. The Panterra GP Case Panterra GP, Inc. was a licensed general contractor. Rosedale Bakersfield Retail VI, LLC and Movie Grill Concepts XX, LLC intended to hire Panterra GP to perform renovation work at the Studio Movie Grill in Bakersfield, California, but drafted a construction contract mistakenly listing Panterra Development Ltd., LLP as the contractor on the project. Panterra GP was the general partner of Panterra Development. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Specification Challenge; Excusable Delay; Type I Differing Site Condition; Superior Knowledge

January 02, 2024 — David Adelstein - Florida Construction Legal Updates
An Armed Services Board of Contract Appeals dispute, Appeal of L.S. Black-Loeffel Civil Constructors JV, ASBCA No. 62402, 2023 WL 5827241 (ASBCA 2023), involved which party bore liability for delay—the federal government or the prime contractor–based on various legal theories. Without detailing the factual details, a number of interesting legal issues were raised in this dispute including (1) a defective specification challenge, (2) excusable delay, (3) Type I differing site condition, and (4) superior knowledge. These legal issues are discussed below. 1. Specification Challenge (Defective Specifications) The contractor claimed that the government’s specifications were defective in regard to a thermal control plan. The government countered that the specifications were not design specifications but performance specifications. The specifications were performance based because they did not tell the contractor how to achieve the performance-based criteria. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

2023 West Coast Casualty Construction Defect Seminar

March 27, 2023 — Beverley BevenFlorez – CDJ Staff
The 29th annual West Coast Casualty Construction Defect Seminar will return to the Disneyland Hotel in May. The event covers topics of interest to those in the construction defect field including prosecution, defense, insurance coverage, and science and technology. The seminar will also have networking opportunities. Attendees every year include professionals “from the legal, insurance, builder, contractor, subcontractor and numerous other communities.” May 18th-19th, 2023 Disneyland Hotel 1150 Magic Way Anaheim, CA 92802 Read the court decision
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I’m Sorry Ms. Jackson, I [Sovereign Immunity] am For Real

June 08, 2020 — Greggory Jacobs - Florida Construction Law News Blog
The Supreme Court of Florida issued its opinion in Florida Highway Patrol v. Jackson, 2020 Fla. LEXIS 108 (Fla. Jan 23, 2020), which answered the following certified question of great public importance: Does rule 9.130 [(A)(3)(C)(XI)] permit an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense? The Court’s answer to this question was “no.” But this opinion stands for much more than just a negative answer to a certified question. Indeed, this opinion has significant implications upon procedural and substantive areas of construction law, which may affect agents of the state of Florida, including Construction Engineering and Inspection professionals and consultants (“CEI”). Procedurally, the Court recognizes that Fla. R. App. P. 9.130 insufficiently protects the public and governmental interests as “it leaves too great a risk that erroneous denials of operational sovereign immunity will go unreviewed until it is too late.” Id. at * 19. By extension of this risk, the Jackson Court announced that “courts should determine entitlement to sovereign immunity as early as the record permits.” Id. at * 18. In fact, on that basis, courts can address a motion for summary judgment asserting entitlement to sovereign immunity even if there are outstanding disputes as to, say, the existence of a duty of care. Id. at 17-18. Accordingly, and in an effort to remedy the risk of erroneous denials going unreviewed until it is too late, the Court amended Fla. R. App. P. 9.130 to expand appellate review of nonfinal orders denying sovereign immunity. Jackson, 2020 Fla. LEXIS 108 at * 19; In re Amendments to Fla. Rule of Appellate Procedure 9.130, No. SC19-1734 (Fla. Jan. 23, 2020). The new form of Fla. R. App. P. 9.130 cements the policy mentioned above because it allows an appeal of a nonfinal order denying a motion for summary judgment due to entitlement to sovereign immunity. Meanwhile, under the old rule, the order was only appealable if the trial court order determined – as a matter of law – that a party was not entitled to sovereign immunity. As such, the new rule focuses on what was argued in the motion as opposed to what was written in the order. Read the court decision
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Reprinted courtesy of Greggory Jacobs, Cole, Scott & Kissane, P.A.
Mr. Jacobs may be contacted at greggory.jacobs@csklegal.com

Court Confirms No Duty to Reimburse for Prophylactic Repairs Prior to Actual Collapse

October 28, 2015 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Grebow v. Mercury Insurance Company (No. B261172, filed 10/21/15), a California appeals court held that coverage for collapse in a homeowners policy does not extend to prophylactic repairs undertaken to mitigate damage before actual collapse of the structure. In Grebow, the insureds had a general contractor inspect the rear deck of their house because of recurring watermarks. The contractor discovered severe decay in the steel beams and poles supporting the second floor of the house. He opined that they could not support the upper portion of the house, and that a large portion of the house would fall. A structural engineer agreed, blaming decay and corrosion. The insureds were advised not to enter the top part of the house, and they contracted for repairs. They also made a claim to Mercury, which denied coverage. The insureds ultimately spent $91,000 out of pocket having the home remediated. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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