U.K. Construction Unexpectedly Strengthens for a Second Month
March 05, 2015 —
Bloomberg News(Bloomberg) -- U.K. construction growth unexpectedly accelerated for a second month in February, led by a strengthening in homebuilding.
Markit Economics said its Purchasing Managers’ Index rose to 60.1, the highest in four months, from 59.1 in January. It fell to a 17-month low of 57.6 in December. Economists forecast the gauge would slip to 59 in February, according to the median estimate in a Bloomberg News survey.
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Bloomberg NewsScott Hamilton may be contacted at
shamilton8@bloomberg.net
Hurricane Harvey Victims Face New Hurdles In Pursuing Coverage
September 07, 2017 —
Tred R. Eyerly - Insurance Law HawaiiJust as Hurricane Harvey departs the state, a new law in Texas, effective September 1, 2017, is going to make it more difficult for home and business owners to pursue claims against their insurance companies.
Prior Texas law imposed liability on an insurer who violated the Insurance Code for the amount of the claim, interest on the amount of the claim at an annual interest rate of 18 percent, and reasonable attorney fees. H.B. 1774 was recently enacted to address legal actions for claims arising from damage to or loss of property due to hailstorms, lightening, wind, hurricane, rainstorm and other natural events.
The bill creates additional procedural hurdles before a policy holder can file a lawsuit against the insurer. A written notice must be provided to the insurer at least 61 days before filing a lawsuit. The notice must include a statement of the acts giving rise to the claim, the specific amount alleged to be owed, and amount of reasonable and necessary attorney's fees already incurred by the policy holder. Once notice is received, the statute allows the insurers to send a written request to inspect, photograph, or evaluate the property.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Few Green Building Notes
December 02, 2019 —
Christopher G. Hill - Construction Law MusingsThis past week, the blogosphere (if that’s even the word these days) has been abuzz about green building and the value that green can add to a project. Three items in particular (among many) got my attention.
The first of these was the fact that a new private sustainability rating system is ready for launch. The Institute for Sustainable Infrastructure (or ISI) is seeking public comment on its proposed envISIon. This new system (aptly dubbed Version 1.0) will go “live” in July for comment. Why mention this new system? First of all, ISI’s founding members are the American Society of Civil Engineers (ASCE), the American Public Works Association (APWA) and the American Council of Engineering Companies (ACEC). This trio gives the new program some fairly heavy weight backing. Second, while there are rating systems aside from the ever present LEED, none have taken hold in any real way to compete with LEED. I am curious to see if the envISIon system has any better luck. Finally, this shows that sustainable building is of interest to more than the USGBC and those of us that discuss LEED on a daily basis. I find this to be a great thing that could lead to more societal acceptance of sustainable practices as a standard practice rather than a goal.
Hopefully such efforts will offset the other two notes that caught my eye recently.
The first of these is the foreclosure of the Chapel Hill, North Carolina Greenbridge project. This project is well documented at my friend Doug Reiser’s (@douglasreiser) Builders Counsel blog so I won’t further discuss the details here. However, the question that Doug asks is a good one, i. e. were the “green” elements of the project to blame?
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Some Construction Contract Basics- Necessities and Pitfalls
January 03, 2022 —
Christopher G. Hill - Construction Law MusingsRecently, I’ve been on an “advising” kick here at Construction Law Musings. My last two posts have been about communication and trusting your gut when it comes to a smooth construction project. This post will be the third in the trilogy (and who knows maybe I’ll have a 4th and 5th like the Hitchhiker’s Guide to the Galaxy “trilogy”).
While all construction contractors should use their communication skills and instincts to assure a smooth and hopefully profitable project, all of the gut following and great communication will not help you if your contract is not up to snuff. In the spirit of giving you a few basics things to look at, here’s my list of three basics that you need in your contract and a three things to be on the lookout for in others’ contracts.
First, the good stuff that needs to be there:
- Attorney Fees Clause– without it, a Virginia court (and most other courts) will not award you a judgment for any attorney fees spent to protect your rights.
- Dispute Resolution– whether the specified resolution is through the litigation process, ADR or some combination, such a clause or paragraph will only help define the parameters of what happens with a claim.
- Detailed scope of work– Without the proper detail in the scope of work, the parties cannot properly set expectations and know what happens when things change.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Improvements to Confederate Monuments Lead to Lawsuits
October 22, 2013 —
CDJ STAFFLawsuits concerning handicap access usually go toward obligating someone to provide access. But in Selma, Alabama, the city decided that handicap access to a Civil War memorial might not be all that important.
The city of Selma hired KTK Mining to provide wheelchair accessibility to the city’s Memorial to the Confederate Dead and to increase security to a monument to the Confederate general Nathan Beford Forrest. After protests, the city revoked the building permit. KTM sued in federal court. The judge has ordered the two parties to a settlement contract.
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Real Estate & Construction News Roundup (04/26/23) – The Energy Transition and a Bit of Brick-and-Mortar Blues
May 01, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn today’s roundup, Americans can buy homes with bitcoin, new tech aims to engineer a novel building material, federal investments boost the coastline (and construction sales), and more.
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Pillsbury's Construction & Real Estate Law Team
Steps to Curb Construction Defect Actions for Homebuilders
June 15, 2017 —
Jason Daniel Feld – Kahana & Feld, LLPThe homebuilding and construction industries in California are at a record high in 2017 according to the National Homebuilders Association. While there is finally prosperity and growth for builders, developers and contractors after suffering from the recession of 2008, there is also a growth in construction defect claims. As with every industry and especially with construction, there are several risk prevention methods that can help curb this litigation.
Time Frames for Pursuing Construction Defect Claims
It is important to know and understand the time frames for which construction defect claims can be pursued by homeowners. There is a hard cut-off for construction defect litigation in California known as the Statute of Repose of 10 years. California Code of Civil Procedure (“CCP”) §337.15 provides a statute of repose that bars actions to recover damages for construction defects more than 10 years after substantial completion of the work of improvement. This provision is limited to property damage claims and does not extend to personal injuries (See, Geertz v. Ausonio, 4 Cal.App.4th 1363 (1992) and willful misconduct or fraudulent concealment claims. (See, Acosta v. Glenfed Development Corp., 128 Cal.App. 4th 1278 (2005).
There are also interim statutes of limitations for “patent” and “latent” defects discovered at the home also from the date of substantial completion. CCP §337.1(e) provides for a four year window to bring suit for deficiencies that are apparent by reasonable inspection (patent deficiencies). CCP §337.15(b) provides for deficiencies that are not apparent by reasonable inspection or hidden defects that require invasive testing to become apparent (latent deficiencies). A latent defect can become patent after it “manifests itself” (i.e. becomes observant – for example a roof leak) for which the four year window from the date of discovery would become the applicable statute of limitations.
The discovery rule effectively acts to toll the statute of limitation period on construction defect claims until they become reasonably apparent. (See, Regents of the University of CA v.Harford Accident & Indemnity, Co., 21 Cal.3d 624, 630 (1978). This is similar to a breach of contract claim, also a four year statute of limitation. Finally, the California Right to Repair Statute (SB800) – Civil Code §§895, et seq. specifically Civil Code §896 sets forth the “Functionality Standards” or a list of actionable defect items, including items affecting the component’s “useful life” and a catch-all provision for all items not expressed listed as defects in the statute. (Civil Code §897). The majority of the defects alleged have a 10 year statute of limitations. However, there are shortened statute of limitations for the following items:
| Functionality Standards | Statute of Limitations |
|---|
| Noise Transmission |
1 year from original occupancy of adjacent unit |
| Irrigation |
1 year from close of escrow |
| Landscaping Systems & Wood Posts (untreated) |
2 years from close of escrow |
| Electrical systems, pluming/sewer systems, steel fences (untreated), flatwork cracks |
4 years from close of escrow |
| Paint/Stains |
5 years from close of escrow |
| All other functionality standards (Civil Code §941(a)) |
10 years after substantial completion(date of recordation of valid NOC) |
Preventative Measures to Curb Construction Defect Litigation
Once the builder knows the time frames for construction defect claims, the following are some preventive measures to limit construction defect claims. As a reminder, homeowners are less likely to bring construction defect action if they feel that the builders are taking care of them.
1. Communicate With Homeowners Prior to Claims
It is imperative to communicate with the homeowners throughout the ten years statute of repose period. For example, most builders provide a limited warranty to the homeowners at the time of purchase. Homeowners are generally confused as to the length of the warranty and what the warranty covers. A practical tip to help curb construction defect claims is for the builder to send postcards or letters to the homeowners at the six month, one year and nine-year marks to advise the homeowner of: (1) the existence of the warranty and what is covered at each time frame; (2) the maintenance obligations of the homeowner at the various time frames; and (3) the fact that the home is approaching the ten-year mark. Most builders would rather deal directly with the homeowners through customer service than defend a construction defect litigation action where the costs to defend the claim will vastly exceed the cost to address the individual homeowner issues. The more the builder communicates with the homeowner in advance, the less likely it is that the homeowner engages in litigation against the builder.
2. Timely Response to Homeowner Claims
During the purchase process, provide the homeowners instructions on how to send in a customer service or warranty requests. Provide multiple methods for notification to the builder by the homeowner when issues arise in their home (fax, email, website forms, etc.). The builder should provide a timely response – within 48 hours of the notice if possible. The homeowner wants to receive some notification from the builder that they received their request and, at the very least, will investigate the claim. Even if it is determined to be a maintenance item or homeowner caused damage, the homeowner should receive: (1) an acknowledgement of the claim; (2) an investigation report of the issue; and (3) an action plan or conclusion statement – this can be a declination of repairs with an explanation as to the cause not being the result of original construction. Sometimes even sending a customer service representative to the home to listen to the homeowner claims and explaining that there are not repairs required is sufficient to satisfy the homeowner. The goal is to make sure the homeowner’s claims are acknowledged and that the builder is standing behind its product. In my experience, the fact that the builder failed to respond in a timely fashion to the homeowner is a significant motivating factor as to why the homeowner elected to enter formal litigation against the builder.
3. Be Proactive When Litigation Ensues Despite the fact that the homeowner has engaged an attorney and joined a construction defect action, the builder is not precluded from continuing to communicate with its homeowners. Several builders send letters to the non-plaintiff homeowners reminding them to contact the builder should they have issues at their homes rather than join the ongoing construction defect action. Under the law, clients can always talk to clients even if they are represented by counsel. While the attorneys for the builders cannot speak to the represented construction defect homeowners, the builder can communicate directly with its homeowners offering to honor its warranty and customer service procedures in lieu of the homeowner proceeding with the litigation. Both of these builder attempts to communicate with homeowners post-litigation have a dual effect – some homeowners elect to contact the builder to effectupate repairs and drop the litigation; while others elect to continue with the litigation. So proceed cautiously in this regard.
It is noted, there are many motivating factors for homeowners to bring a lawsuit against homebuilders that have nothing to do with the construction practices or customer service and are merely economically driven. However, these small steps in addition to providing solid construction practices should help curb construction defect litigation by homeowners.
Jason Daniel Feld is a founding partner of Kahana & Feld LLP, an AV Preeminent boutique litigation firm in Orange County specializing in construction defect, insurance defense, employment and general business litigation matters. The firm was founded with the goal of providing high-quality legal services at fair and reasonable rates. The firm believes that what defines attorneys is not their billing rates, but their record of success, which speaks for itself. For more information, please visit: www.kahanafeld.com.
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Contractor Sued for Contract Fraud by Government
December 11, 2013 —
CDJ STAFFA Canton, Ohio construction company, TAB Construction, has been sued by the federal government over claims that the company lied about its location in order to receive contracts from the U.S. government. According to the suit, TAB received about $13 million for contracts with the U.S. Army Corps of Engineers. The firm had gained the contracts through a Small Business Administration program that allowed firms in certain areas to compete for contracts, however, the firm was not located in the appropriate area.
When the SBA found that TAB was not doing business out of an address that qualified for the SBA’s HUBZone program, the company claimed to be working from another address that qualified. Upon investigation, the SBA found this also was not true.
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