Vacation Rentals: Liability of the Owner for Injury Suffered by the Renter
May 13, 2019 —
Kevin J. Parker - Snell & Wilmer Real Estate Litigation BlogWith the explosion of the “private” rental business wherein residential property owners rent their house or condo on a short-term basis to third-parties, certain legal issues have arisen with regard to the duties owed by the property owner to the renter.
A recent Virginia Supreme Court case, Haynes-Garrett v. Dunn, 818 S.E.2d 798 (Va. 2018), addressed that issue. In that case, the property owners owned a rental house in Virginia Beach. The property was not the owners’ main residence, but rather a vacation home that was sometimes used by the owners, but mostly used as a rental. The issue addressed by the court was whether – for the purpose of evaluating the owners’ duty of care to the renter – the relationship should be classified as a “landlord-tenant” relationship or an “innkeeper-guest” relationship. This classification was important because the duties of the owner to the renter were significantly different depending on the category. In the landlord-tenant arena, under Virginia law, the landlord has no duty to maintain the property in a safe condition because the property is deemed to be under the tenant’s exclusive control. (An exception being concealment or fraud by the landlord as to some defect in the premises that is known to the landlord but unknown to the tenant.) Assuming that exception does not apply, the tenant takes the premises in whatever condition they may be in, thus assuming all risk of personal injury from defects or dangerous conditions.
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Kevin J. Parker, Snell & WilmerMr. Parker may be contacted at
kparker@swlaw.com
Yet ANOTHER Reason not to Contract without a License
October 25, 2021 —
Christopher G. Hill - Construction Law MusingsRemember when I stated that you cannot lawfully perform construction work in Virginia without a contractor’s license? Remember when I said that you risk non-payment if you do so? If you needed another reason, a relatively recent Virginia Court of Appeals decision upholding a criminal conviction for performing construction work without a license should be that reason.
In Riddel v. Commonwealth, the Court took up an appeal from the conviction of Jeff Riddel where Mr. Riddel was verbally asked by homeowners to inspect and then repair their septic system. Mr. Riddel then contracted with Fairfax Suburban Septic to pump out and repair the system. Mr. Riddel then delivered the homeowners an invoice from Fairfax Suburban Septic and instructed the homeowners to pay Fairfax Suburban Septic directly. After payment, the homeowners became aware that the work was not completed and that neither Mr. Riddel nor his subcontractor was licensed to perform septic work in Virginia.
During the trial, Mr. Riddel argued on a Motion to Strike the Commonwealth’s evidence that (1) he merely arranged for licensed contractors to perform the repairs to the septic system, arguing that Virginia Code §§
54.2-801 to 802 permitted Riddel to arrange the work without a contractor’s license and (2) no written contract to perform a septic inspection or repairs existed. The Circuit Court denied the motion and Mr. Riddel was convicted under Va. Code 54.1-111 for performing the work without a license. Needless to say, he appealed.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Court Throws Wet Blanket On Prime Contractor's Attorneys' Fees Request In Prompt Payment Case
September 03, 2015 —
Steven M. Cvitanovic & Abigail E. Lighthart – Haight Brown & Bonesteel LLPPrompt payment penalty cases do not come around very often, but when they do, there is bound to be fireworks.
In James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc., et al. (No. C072169, filed 8/27/15), the California Court of Appeal for the Third Appellate District upheld the trial court's discretion to not award prevailing party attorneys' fees to the party who won a prompt payment dispute. California Business and Professions Code §7108.5 and Public Contract Code §§7107 and 10262 are the mechanisms for obtaining prompt payment relief in California. As shown by the outcome, it is possible to win and lose at the same time.
West Bay Builders, Inc. (“West Bay”) was the prime contractor on a school construction project for Stockton Unified School District. West Bay entered into a subcontract agreement with James L. Harris Painting & Decorating, Inc. (“Harris”) on the project. During construction there were disagreements between West Bay and Harris regarding the contractual scope of work, and Harris performed work it believed was outside the contract, believing it would be paid for the additional work. After West Bay refused to pay for the additional work, Harris left the project, and West Bay hired another subcontractor to complete the work.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and
Abigail E. Lighthart, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Ms. Lighthart may be contacted at alighthart@hbblaw.com
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Partners Jeremy S. Macklin and Mark F. Wolfe Secure Seventh Circuit Win for Insurer Client in Late Notice Dispute
November 12, 2019 —
Jeremy S. Macklin & Mark F. Wolfe - Traub Lieberman PerspectivesIn a written decision dated August 12, 2019, authored by Chief Judge Diane P. Wood, the U.S. Court of Appeals for the Seventh Circuit ruled in favor of Traub Lieberman’s insurer client, affirming the District Court’s grant of summary judgment in the insurer’s favor. Partners, Jeremy S. Macklin and Mark F. Wolfe, represented the insurer client in the District Court and before the Seventh Circuit. Macklin argued the case before the Seventh Circuit on behalf of the insurer on May 28, 2019.
The insurer client issued an excess liability policy to Deerfield Construction, a telecommunications construction company, which incorporated the notice requirements of the primary liability insurance policy issued by American States Insurance Company. The insured’s employee was involved in an automobile accident in 2008, during the effective dates of the excess liability policy. A lawsuit arising from the accident was filed and served in 2009. While Deerfield Construction, through its retained insurance intermediary, provided immediate notice of the accident and lawsuit to the primary liability insurer, the insurer client did not receive notice of either the accident or the lawsuit from any source until December 2014, approximately six weeks before trial.
Following a $2.3 million judgment, the insurer client filed a complaint for declaratory judgment seeking a finding that Deerfield Construction materially breached the excess liability policy by not providing reasonable notice of the accident or the lawsuit, as required by the policy. The District Court found that the notice given to the insurer client was unreasonable as a matter of law. The District Court rejected Deerfield Construction’s argument that an insurance broker involved in the purchase of the excess liability policy, Arthur J. Gallagher, was the insurer client’s apparent agent for purposes of accepting notice. The District Court also rejected Deerfield Construction’s argument that the insurer client’s acts of requesting discovery, reviewing trial reports, and participating in settlement discussions raised equitable estoppel concerns.
Reprinted courtesy of
Jeremy S. Macklin, Traub Lieberman and
Mark F. Wolfe, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com
Mr. Wolfe may be contacted at mwolfe@tlsslaw.com
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A Termination for Convenience Is Not a Termination for Default
April 22, 2024 —
David Adelstein - Florida Construction Legal UpdatesA termination for convenience is NOT a termination for default. They are NOT the same. They should NOT be treated as the same. I am a huge proponent of termination for convenience provisions because sometimes a party needs to be able to exercise a termination for convenience, but the termination is not one that rises to a basis for default. However, exercising a termination for convenience does not mean you get to go back in time and convert the termination for convenience into a termination for default. It does not work like that. Nor should it.
An opinion out of the Civilian Board of Contract Appeals – Williams Building Company, Inc. v. Department of State, CBCA 7147, 2024 WL 1099788 (CBCA 2024 – demonstrates a fundamental distinction between a termination for convenience and a termination for default, i.e., that you don’t get to conjure up defaults when you exercise a termination for convenience:
Because a termination for convenience essentially turns a fixed-price construction contract into a cost-reimbursement contract, allowing the contractor to recover its incurred performance costs, the resolution of this appeal will involve identifying the total costs that [Contractor] incurred in performing this contract before [Government] terminated it for convenience. Since [Government] terminated the contract for convenience rather than for default, it no longer matters whether, in the past,[Contractor] acted intentionally in overstating the amount of its incurred costs or committed a contract breach. Ultimately, as permitted in response to a termination for convenience, [Contractor] will recover those allowable costs that [Contractor]establishes it incurred in performing the contract.
Williams Building Company, supra.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
San Francisco House that Collapsed Not Built to Plan
February 14, 2014 —
Beverley BevenFlorez-CDJ STAFFLast December, a San Francisco, California “developer’s Twin Peaks house collapsed and slid down a hill during renovations.” The San Francisco Chronicle reported that the house “was being supported by three reinforcing towers, rather than the nine required under its approved plans, according to documents provided to city building inspectors.”
According to a report by Department of Building Inspection chief Tom Hui, developer Mel Murphy "’failed to follow and implement the approved plans and the sequence of construction’ in his permit,” as quoted by The San Francisco Chronicle. The report also stated that the work “was not independently inspected as required” though this is “vehemently disputed by Murphy.”
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Mixed Reality for Construction: Applicability and Reality
July 22, 2019 —
A. Vincent Vasquez - Construction ExecutiveOne technology available to the digital contractor for mapping what’s happening in the physical world with the 3D models is mixed reality. Mixed reality often includes both augmented reality and virtual reality.
Preconstruction Phase
During the preconstruction design phase, mixed reality can be used for a number of tasks, such as:
- conducting design iterations;
- communicating designs to owners;
- visualizing the impact of design changes;
- discovering design and coordination clashes; and
- mocking up virtual interior designs.
Marketing
Mixed reality can also be used to create marketing material, such as a virtual showroom. Imagine being able to show a potential client what the building will look like. For example, the client, wearing mixed-reality glasses, can see the physical neighborhood with the building or can take a virtual “walk” through of an apartment before it it is even completed.
Reprinted courtesy of
A. Vincent Vasquez, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Top 10 Take-Aways: the ABA Forum's 2024 Mid-Winter Meeting
February 26, 2024 —
Marissa L. Downs - The Dispute ResolverThe Forum on Construction Law convened last week at Caesars Palace in sunny Las Vegas for its 2024 Mid-Winter Meeting. Carrie Okizaki and David Suchar (along with John Cook, Karen Erger, and countless others) put together a truly outstanding program on power projects. Here are my top 10 take-aways from this unique and insightful event:
10. The demand for power projects is steadily increasing. The increasing demand for power construction projects is being driven chiefly by the need to replace aging infrastructure as well as the desire to develop cleaner and more sustainable generation facilities. The constant demand for more and more electricity is not that surprising but, according to Jeff Richardson (Energy Solutions) and Eric S. Gould (Modus Strategic Solutions), the pipeline market size for power-generation projects in 2028 is expected to reach $10.6 trillion, i.e., double what it was just in 2022.
9. "Net Zero" is the new normal. In December 2021, President Biden issued an executive order proclaiming that, by 2050, the federal government will be a Net-Zero contributor to the climate crisis. To achieve this goal, the greenhouse gasses ("GHGs") released by government operations must be less than (or equal to) the GHGs absorbed/removed from the environment. Other government bodies and private companies alike are adopting similar Net-Zero goals. Because not all of these promises are created equal, Moody’s Investors Services has a tool to help consumers compare and evaluate companies' carbon transition plans. According to panelists, Amanda Schermer MacVey (Venable), Brendan Hennessey (Pillsbury), and Laszlo von Lazar (Black & Veatch), these Net-Zero commitments are likely to result in more rigorous supplier codes of conduct and heightened carbon tracing efforts on construction projects.
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Marissa L. Downs, Laurie & Brennan, LLPMs. Downs may be contacted at
mdowns@lauriebrennan.com
