Construction Defect or Just Punch List?
December 11, 2013 —
CDJ STAFFA couple in Dickinson, North Dakota have put big, green “buyer beware” signs on their home. They’re not planning on selling, but just trying to warn prospective neighbors of the problems they’ve had since moving into their new home. Andrea Thermes said her problems included leaking windows and uneven floors. “I absolutely love my house,” she said. “If we didn’t have the issues, I would be the happiest girl in the world.”
One problem was a leaking picture window in her living room. The builder replaced it, but the first window that arrived was the wrong size. The new home is still under a warranty and the builder has been fixing issues as they arise. “They are upset with some of the problems they have had,” said William Henry, president of B-Dev, the builder of the home. Since Ms. Thermes’s window wasn’t repaired in time for Thanksgiving, Mr. Henry sent wine and beer to her home. “Not that that makes up for not having their window, but we’re trying to make this work and trying to appease them,” he said.
But Mr. Henry said that some of the problems “are not really material defects,” characterizing them as “punch-list and warranty items.”
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Colorado Senate Revives Construction Defects Reform Bill
March 01, 2017 —
Beverley BevenFlorez-CDJ STAFFA re-booted construction defects reform bill recently passed its first Senate committee, according to the Denver Business Journal. Next, Senate Bill 156, sponsored by Sen. Owen Hill, R-Colorado Springs, heads to the Senate floor for debate.
SB 156 “would require that condominium owners alleging construction defects take their disputes to arbitration or mediation if requested by builders,” the Denver Business Journal reported. “It also would require that homeowners be informed of the consequences of filing legal actions over purported disputes and that a majority of all owners in a condominium complex vote to proceed with legal action, rather than just a majority of homeowners association board members.”
However, it is almost identical to the failed measures that were introduced in 2014 and 2015.
Homeowners association group members and owners of defective condominiums argued against the measure, stating “that the effort would not improve the quality of building in the state, but simply would block aggrieved Coloradans from taking their complaints before a jury of their peers.”
Proponent of the bill, Tom Clark, CEO of Metro Denver Economic Development Corp., said “that Denver’s housing costs have risen since the first bill was introduced in 2013 to the sixth-most-expensive in the country – and are tops for any metro area not on a coast.”
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Homeowners Not Compelled to Arbitration in Construction Defect Lawsuit
January 06, 2012 —
CDJ STAFFA California appeals court has ruled that developers cannot enforce CC&Rs in a case where a developer cited an arbitration clause it had inserted into the CC&R. The homeowners are alleging construction defect and wished to sue the developer who claimed a right to this under the CC&Rs.
The Marina del Rey Argonaut reports that particular appeal dealt only with whether the developer could compel arbitration. The underlying construction defect issues will subsequently have to be determined at trial.
The attorney for the homeowners’ association, Dan Clifford, noted that “arbitration has to be agreed to by both parties.” The covenant was drafted by the developer and in addition to requiring arbitration, it had a clause that it could not be amended without the consent of the developers. The court ruled that CC&Rs “can be enforced only by the homeowners association, the owner of a condominium or both.”
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Just When You Thought General Contractors Were Necessary Parties. . .
December 31, 2014 —
Christopher G. Hill – Construction Law MusingsDid you think that a subcontractor had to name a general contractor in a mechanic’s lien suit? I did. Did you think that nothing about this changed in the case where a Virginia mechanic’s lien was “bonded off” pursuant to Va. Code Section 43-71? I did.
Well, a recent Virginia Supreme Court case, Synchronized Construction Services Inc. v. Prav Lodging LLC, seems to at least create some doubt as to whether the a general contractor is a “necessary” party to a lawsuit by a subcontractor in the case where a bond is posted for release of a mechanic’s lien.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Timely and Properly Assert Affirmative Defenses and Understand Statutory Conditions Precedent
August 05, 2024 —
David Adelstein - Florida Construction Legal UpdatesA recent case serves as a reminder to TIMELY and PROPERLY assert affirmative defenses and to understand statutory conditions precedent to construction lien claims. Failing to do one or the other could be severely detrimental to the position you want to take in a dispute, whether it is a lien foreclosure dispute, or any other dispute.
In Scherf v. Tom Krips Construction, Inc., 2024 WL 3297592 (Fla. 4th DCA 2024), the president of a construction company and his wife were building a residence. They orally accepted the proposal from the concrete shell contractor and asked for invoices to be submitted to the president’s construction company. No written contract was memorialized. The president and his wife did not pay the concrete shell contractor and the contractor recorded a lien and sued to foreclose on the lien. Years later (the case had been stayed because the president and his wife filed for bankruptcy and the shell contractor had to get leave of the automatic bankruptcy stay to pursue the lien foreclosure), the shell contractor moved for summary judgment. The president and his wife moved for leave to file an amended answer and affirmative defenses. They claimed the oral contract was with the construction company and the shell contractor was required to serve a Notice to Owner under
Florida Statute s. 713.06. Alternatively, they argued that if the oral contract was with the president and his wife, the shell contractor was required to serve a Final Contractor’s Payment Affidavit at least 5 days before filing its lien foreclosure claim, and did not, as required by s. 713.06.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Builder Waits too Long to Dispute Contract in Construction Defect Claim
May 10, 2012 —
CDJ STAFFThe Louisiana Court of Appeals has affirmed the lower court’s judgment in the case of Richard v. Alleman. The Richards initiated this lawsuit under Louisiana’s New Home Warranty Act, claiming that they had entered into a construction contract with Mr. Alleman and that they quickly found that his materials and methods had been substandard. They sued for the cost of repairing the home and filing the lawsuit. Mr. Alleman countersued, claiming the Richards failed to pay for labor, materials, and services. By his claim, they owed him $12,838.80.
The trial court split the issues of liability and damages. In the first trial, the court concluded that there was a contact between Alleman and the Richards and that the New Home Warranty Act applied. Mr. Alleman did not appeal this trial.
The second trial was on the issue of damages. Under the New Home Warranty Act, the Richards were found to be entitled to $36,977.11 in damages. In a second judgment, the couple was awarded $18,355.59 in attorney’s fees. Mr. Alleman appealed both judgments.
In his appeal, Alleman contended that the trial court erred in determining that the Home Warranty Act applied. This was, however, not the subject of the trial, having been determined at the earlier trial. Nor did the court accept Alleman’s claim that the Richards failed to comply with the Act. The trial record made clear that the Richards provided Alleman with a list of problems with their home by certified mail.
The court did not establish whether the Richards told Alleman to never return to their home, or if Alleman said he would never return to the home, but one thing was clear: Alleman did not complete the repairs in the list.
A further repair was added after the original list. The Richards claimed that with a loud noise, a large crack appeared in their tile flooring. Mr. Alleman stated that he was not liable for this as he was not given a chance to repair the damage, the Richards hired the flooring subcontractors, and that the trial court rejected the claim that the slab was defective. The appeals court found no problem with the award. Alleman had already “refused to make any of the repairs.”
Finally Alleman made a claim on a retainage held by the Richards. Since Alleman did not bring forth proof at trial, the appeals court upheld the trial courts refusal to award a credit to Alleman.
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Happenings in and around the West Coast Casualty Seminar
April 02, 2014 —
Beverley BevenFlorez-CDJ STAFFFor those who are attending the West Coast Casualty Construction Defect Seminar May 15th-16th, the Construction Defect Journal has compiled a list of concerts, sporting events, and museum exhibitions taking place in and around Anaheim that week. Whether you like to spend your personal time checking out a new band, or watching your favorite Angel slide into home, or perusing the local art museum, there is something to spark your interest.
CONCERT VENUES
THE HOUSE OF BLUES IN ANAHEIM
Blessthefall with Silverstein, The Amity Affliction, SECRETS and Heartist
Tuesday, May 13th, 2014 Doors Open at 6pm / Show Begins at 7pm
For More Information and to Purchase Tickets...
THE HOUSE OF BLUES IN ANAHEIM
Stephen "Ragga" Marley
Saturday, May 17th, 2014 Doors Open at 8pm / Show Begins at 9pm
For More Information and to Purchase Tickets...
THE GROVE OF ANAHEIM
Lindsey Stirling plus special guest Dia Frampton
Wednesday, May 14, 2014 Doors Open at 7pm / Show Begins at 8pm
For More Information and to Purchase Tickets...
THE GROVE OF ANAHEIM
Primal Fear
Thursday, May 15, 2014 Doors Open at 6:30pm / Show Begins at 7pm
For More Information and to Purchase Tickets...
THE GROVE OF ANAHEIM
Jillian Michaels 'Maximize Your Life' Tour
Friday, May 16, 2014 Doors Open at 6pm / Show begins at 8pm
For More Information and to Purchase Tickets...
SPORTING EVENTS
ANGEL’S STADIUM - BASEBALL
The Los Angeles Angels of Anaheim v. Tampa Bay Rays
Thursday, May 15th at 7:05pm
Friday, May 16th at 7:05pm
Saturday, May 17th at 6:05pm
Sunday, May 18th at 12:35pm
For More Information and to Purchase Tickets...
MUSEUM EXHIBITIONS
MUZEO
Transcending Trash: The Art of Upcycling
Sat Apr 26 – Sun Aug 31, 2014
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 5 pm
For More Information and to Purchase Tickets...
BOWERS MUSEUM (Santa Ana)
BEETHOVEN: THE LATE GREAT
February 8, 2014 - May 18, 2014
Museum Days/Hours: Tuesday – Sunday (Closed Mondays) / 10 am to 4 pm
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Court of Appeal Confirms Privette Doctrine as Applied to Passive Conduct of Property Owner
March 22, 2018 —
Bruce Cleeland and Frances Ma – Publications & InsightsIn
Delgadillo v. Television Center, Inc., 2018 No. B270985, the California Court of Appeal examined and refined the
Privette doctrine.
Mr. Delgadillo worked as a supervisor/window cleaner for a company named Chamberlin Building Services (CBS). Television Center, Inc. (TCI) purchased an existing building and thereafter contracted with CM Cleaning Solutions, Inc. (CMC) to provide cleaning and janitorial services. CMC, on behalf of TCI, solicited a proposal from CBS to wash the building’s windows. CBS and its employees made all decisions about how the window washing would be accomplished. The window washing equipment used on the job was owned, inspected and maintained by CBS. In violation of CBS’ policy, Mr. Delgadillo, attached a safety line to a single connector which was not an acceptable anchor point. The bracket failed and Mr. Delgadillo fell 50 feet to his death.
Survivors of Mr. Delgadillo filed suit against TCI for negligence and negligence per se, alleging that Mr. Delgadillo was fatally injured because TCI failed to install structural roof anchors, as required by several statutes.
Reprinted courtesy of
Bruce Cleeland, Haight Brown & Bonesteel LLP and
Frances Ma, Haight Brown & Bonesteel LLP
Mr. Cleeland may be contacted at bcleeland@hbblaw.com
Ms. Ma may be contacted at fma@hbblaw.com
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