Resurgent Housing Seen Cushioning U.S. From World Woes: Economy
January 28, 2015 —
Steve Matthews – Bloomberg(Bloomberg) -- Real estate developer Crescent Communities in Charlotte, North Carolina, expects to sell 1,000 new homes this year across the Southeast U.S. and Texas, double the number of two years ago.
“Demand is the strongest since the recession” that ended in June 2009 and stemmed from the collapse in housing, said Chief Executive Officer Todd Mansfield. “The economy is getting better and the labor market is getting better.”
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Steve Matthews, BloombergMr. Matthews may be contacted at
smatthews@bloomberg.net
What are Section 8(f) Agreements?
July 02, 2018 —
Wally Zimolong – Supplemental Conditions Like many areas of federal labor law, there are different rules for construction industry employers. One major difference is in how employers become unionized. Typically, under Section 9(a) of the National Labor Relations Act, a union becomes a collective bargaining agent of employees only after a majority of employees show support for union representation. In other words, the employees chose whether to be represented by a particular union. However, under Section 8(f) of the NLRA, construction industry employers can choose to become union without any showing of majority support by employees. In fact, construction industry employers don’t need to have any employees at all to sign a “8(f) agreement.” Thus, these agreements have become known as pre-hire agreements.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Aging-in-Place Features Becoming Essential for Many Home Buyers
March 12, 2014 —
Beverley BevenFlorez-CDJ STAFFWith the rising number of Americans over the age of sixty-five, there is an “upswing” in demand of “aging-in-place home features,” according to Big Builder.
Big Builder also noted seven accessible features that homebuyers identified when surveyed by The National Association of Home Builders (NAHB). A couple of the features listed were “doorways at least three feet wide” and “non-slip floors.” The survey results were reported in What Home Buyers Really Want, released in May 2013 by the NAHB.
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Amazon Can be Liable in Louisiana
August 05, 2024 —
Michael J. Ciamaichelo - The Subrogation StrategistIn June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims.
Amazon Can be a “Seller” Under the Louisiana Products Liability Act
Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program.
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Michael J. Ciamaichelo, White and WilliamsMr. Ciamaichelo may be contacted at
ciamaichelom@whiteandwilliams.com
Construction Law Firm Welin, O'Shaughnessy + Scheaf Merging with McDonald Hopkins LLC
February 05, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to a press release on PR Newswire, Columbus, Ohio law firm McDonalds Hopkins LLC is merging with firm Welin, O’Shaughnessy + Scheaf. McDonalds Hopkins LLC is “a business advisory and advocacy law firm with a more than 80-year history.” They are looking to expand their “Columbus presence” by the merger with “the boutique firm” that specializes in construction law, complex business litigation and oil and gas litigation.
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Park Avenue Is About to Get Something It Hasn’t Seen in 40 Years
February 05, 2015 —
David M. Levitt – BloombergSometime next week, a metal frame will go up around the blocky brick tower at Manhattan’s 425 Park Ave., designed to protect pedestrians from falling objects. It’s a prelude to the building’s demise.
In about three years, if all goes according to plan, the site will have a new Norman Foster-designed skyscraper more than twice the height of the existing one. The replacement would be the first new office building in almost four decades on what the developer, David Levinson, called New York’s “grand boulevard of commerce.”
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David M. Levitt, Bloomberg
Comparing Contracts: A Review of the AIA 201 and ConsensusDocs - Part II
March 28, 2018 —
Michael Sams and Amanda Cox – Construction Executive, A publication of Associated Builders and Contractors. All Rights Reserved.Part II of this three-part series compares and analyzes important contract sections in the AIA 201 (2007 and 2017 versions) and ConsensusDocs (2014 and 2017 versions), including Schedule/Time, Consequential Damages/LDs, Claims and Disputes/ADR.
Part I covered Financial Assurances, Design Risk, Project Management and Contract Administration. Part III will cover Insurance and Indemnification and Payment.
SCHEDULE/TIME
Relevant Sections:
- 2007 & 2017 A201: Section 3.10.1
- 2014 & 2017 ConsensusDocs: Section 6.2
AIA:
- Section 3.10.1 of the 2007 A201 requires that the Contractor promptly after being awarded the Contract, prepare and submit a construction schedule providing for Work to be completed within the time limits required in the Contract Documents.
- This schedule shall be revised at appropriate intervals.
- The 2017 edition breaks down the schedule to contain date of commencement, interim milestone dates, date of substantial completion, apportionment of Work by trade or building system, and the time required for completion of each portion of the Work.
- Under section 3.10.2 of the 2007 and 2017 versions, if the Contractor fails to provide a submittal schedule, the Contractor is not entitled to any additional compensation or a time extension based on the Owner’s or the Architect’s slow processing of submittals, regardless of how long they take.
ConsensusDocs 200:
- The 2017 Contract replaces the term Contract Time and instead requires a “Schedule of the Work…formatted in detailed precedence-style critical path method that (a) provides a graphic representation of all activities and events, including float values that will affect the critical path of the Work and (b) identifies dates that are critical to ensure timely and orderly completion of the Work.”
- The Constructor must submit an initial schedule to the Owner only before, “first application for payment” and thereafter on a monthly basis. (Section 6.2.1).
- The Owner is allowed to change the sequences provided in the schedule as long as it does not “unreasonably interfere with the Work.” (Section 6.2.2).
Reprinted courtesy of
Michael Sams , Kenney & Sams and
Amanda Cox, Kenney & Sams
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Are Construction Defect Laws Inhibiting the Development of Attached Ownership Housing in Colorado?
October 29, 2014 —
James M. Mulligan, Esq. – Snell & Wilmer, LLPThis article responds to the article published in the September 18, 2014 issue of the Construction Defect Journal. It provides a different perspective to this issue, based on the author's experience with these matters during the past decade of attention to this specific challenge.
During recent years, there has been much discussion about the lack of attached ownership housing construction in Colorado. The main culprit, according to several sources within the community, seems to be our state's construction defect laws.
Since 2001, there has been a periodic series of legislative fixes to our construction defect laws that saw the pendulum swing back and forth between the interests of the consuming public who purchase the homes and certain protections of the developers and homebuilders from excessive and unnecessary litigation. Some say that the current state of the law is more onerous than necessary on the developers and homebuilders and it is artificially inhibiting the development of multifamily ownership housing in a time of high demand and low supply.
A recent opinion article in the September 29th, 2014 issue of the Denver Post stated, in part:
"No one is suggesting that developers escape liability for construction defects or that homeowners be denied the right to sue. But under the state's current defect laws, the scales have tilted too far in favor of litigation as the default tool for resolving disputes. And this appears to be the biggest reason for the collapse in the number of new multifamily [ownership] dwellings in recent years."
Rather than the typical conflict between the plaintiffs’ bar (representing the homebuyer) and the homebuilding industry that has produced the "back-and-forth" nature of our construction defect laws in the past, this 2014 legislative session found new constituents and a different perspective on the issue. A broad ranging coalition that included the Metro Mayors Caucus, major segments of the affordable housing community, and the general business community came together to address what their research showed as an astonishing lack of construction of ownership attached housing. There was a continuing boom going on in the development of multifamily "rental" housing, but an even more unusual deficit in multifamily "ownership" housing. Research apparently showed that, although about 20% + of construction of attached housing was in the ownership format throughout the Rocky Mountain West, Colorado was only producing about 2%. Interviews conducted by the research group that was retained by this coalition revealed that the development and homebuilding community were not willing to commence construction of ownership attached housing because of the continuing threat of litigation available under current interpretations of our state's construction defect laws. Lenders were also reluctant to provide financing for such projects faced with the apparent real threat of litigation that could shut down their projects and materially impact their loan viability and the value of the loan's collateral. Moreover, insurance premiums to cover such claims were so high, and many times unavailable, as to make such projects unfeasible.
This lack of available multifamily ownership housing was creating an ever-increasing concern over the resulting imbalance of housing options in and around the metro area, where the urban character of the metro region would need such ownership options in the attached housing format in order to address the more dense character of the urban setting. This imbalance of ownership attached housing was thwarting the advancement of "community" in the context of creating opportunities for all options of housing so important for a community balance. This included ownership options in this format that address the need for the younger professionals entering the workforce, newly forming households, seniors desiring to scale down their housing size and location, as well as the segment of the market who have limited means and need to address the affordability of homeownership. This was being most clearly felt along the FasTracks lines where attached ownership housing was an important element in originally advancing the TOD communities that are expected to be developed around these transit stops.
Rather than engage the battle of creating more contention in the various aspect of construction defect legislation per se, this coalition attempted to temper their approach and address specific issues that seemed to advance protection of the consuming homeowner while, at the same time, advocating a method of dispute resolution encouraged in the state's laws regarding such issues.
Normally, attached ownership housing is developed under our state laws governing the creation of Common Interest Communities ("CIC's"), including those communities where there are units that are attached and contain common elements. These CIC's will be encumbered by certain recorded documents (normally referred to as "Declarations") that structure the "community" within which the units are located and set up certain rules and restrictions that are intended to respect the common interests of the unit owners within that community. There is also a Homeowners Association ("HOA") organized for the common interest community that is charged with the management of the common elements and the enforcement of the rule and regulations governing the community.
The coalition chose to address their concerns through a bill including a couple of changes in the state laws governing CIC's, which would provide further protection to the homeowner and advance alternative dispute resolution as an expedient approach to resolving disputes should they arise. Those changes included:
1. Majority Owner Vote Re: Litigation -Rather than allowing two owners plus a vote of the HOA Board to determine whether or not to file litigation alleging construction defects in a CIC, the proposed change would require a simple majority vote of the unit owners who are members in the respective HOA where the alleged defect occurred. This approach addressed the increasing concern of unit owners whose homes are unmarketable and not financeable during the course of any such litigation.
This does not prevent an aggrieved owner from pursuing claims regarding that person's own unit, it just requires a majority of the owners to vote for litigation that affects the entire CIC in such litigation. This approach also included a provision for advance notice to the owners of such pending litigation accompanied by several disclosures regarding the potential litigation and its potential impact on the respective owner. This approach to protecting the rights of homeowners in a CIC seemed to be in line with everyone's interests, while not preventing an individual consumer/unit owner to advance its own claims.
2. Alternative Dispute Resolution -This proposal clarified the stated intent of the CIC statutes that advances alternative dispute resolution by providing that any mandatory arbitration provisions that are already contained in the Declaration that encumbers the respective unit in a CIC shall not be changed or deleted without the permission of the Declarant (e.g.; the developer of the CIC). This provision was to affirm a provision that the purchasing unit owner was aware of at the time of purchase and that it follows the spirit and intent of the state statutes governing such CIC's.
Notwithstanding the curative nature of these proposals, the legislation did not address the issue because a legislative maneuver was employed that did not allow for its consideration during the waning days of the session.
More recently, one of Colorado's municipalities, the home rule city of Lakewood, passed a local ordinance addressing this issue in a similar fashion, with a few more definitive suggestions regarding how to alleviate the lopsided nature of our current state of law. Without going into detail at this time with that specific ordinance, or the issue of its ability to address matters of a state-wide concern at the local level, the point is that several of Colorado's local communities, frustrated with the inability of the state legislature to deal with the issue are, at the very least, sending a signal that something must be done and, if the state is unwilling to lead on this matter, local communities will have to act.
This issue has not receded into the back room, and we will see a continuing crusade from an updated coalition to address these reasonable modifications to our state laws that will at least provide some protections to the CIC homeowner regarding unwanted litigation and some relief to the homebuilding industry from excessive litigation.
James M. Mulligan is a partner in the Denver office of Snell & Wilmer, LLP, a full-service commercial law firm located in nine cities throughout the Western United States and in Mexico. The firm’s website is http://www.swlaw.com.
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