Lien Attaches To Landlord’s Interest When Landlord Is Party To Tenant Improvement Construction Contract
January 03, 2022 —
David Adelstein - Florida Construction Legal UpdatesIf 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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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
In Florida, Exculpatory Clauses Do Not Need Express Language Referring to the Exculpated Party's Negligence
October 02, 2015 —
Edward Jaeger & William Doerler – White and Williams LLPIn Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), the Supreme Court of Florida considered whether a party to a contract, in order to be released from liability for its own negligence, needs to include an express reference to negligence in an exculpatory clause. The court held that, unlike an indemnification clause, so long as the language in an exculpatory clause is clear, the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not, for that reason alone, render the exculpatory clause ineffective.
Background
Give Kids the World, Inc. (“GKW”) is a non-profit organization that provides free vacations to seriously ill children and their families at GKW’s resort village. To use the resort, vacationers have to fill out an application. Stacy and Eric Sanislo filled out an application to bring their seriously ill child to the village for a vacation and GKW accepted their application. Upon arriving at the resort, the Sanislos filled out a liability release form.
Reprinted courtesy of
Edward Jaeger, White and Williams LLP and
William Doerler, White and Williams LLP
Mr. Jaeger may be contacted at jaegere@whiteandwilliams.com
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com
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Congratulations to Partner Nicole Whyte on Receiving the Marcus M. Kaufman Jurisprudence Award
September 30, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPOn Thursday, September 19th, BWB&O Partner Nicole Whyte and her fellow recipients Michael Ermer and Hon. Kirk Nakamura (Ret.) were honored at this year’s Jurisprudence Awards Dinner, a fundraiser benefitting the Anti-Defamation League! Thank you to BWB&O Co-Founder and Nicole’s longtime business partner and friend Keith Bremer for his thoughtful introduction and for presenting her with the award, and to BWB&O’s team who joined the event to support Nicole Whyte.
Since 1993, the Anti-Defamation League has presented the Marcus M. Kaufman Jurisprudence Award to attorneys who make exceptional contributions to the legal profession and community. ADL’s mission is to stop defamation and secure justice and fair treatment for all people. To learn more about ADL, please visit adl.org
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
It’s a COVID-19 Pandemic; It’s Everywhere – New Cal. Bill to Make Insurers Prove Otherwise
August 17, 2020 —
Scott P. DeVries & Andrea DeField - Hunton Andrews KurthOn June 29, in a development that may fundamentally change the landscape for California businesses which have sustained COVID-19 related business interruption loss, two California legislators amended pending legislation to address several of the most hotly contested issues regarding insurance recovery for these devastating losses.
The bill, Assembly Bill 1552, focuses on All-Risk property insurance policies. As amended, it would create a “rebuttable presumption” that COVID-19 was present on and caused physical damage to property which was the direct cause of business interruption. A similar rebuttable presumption would apply to orders of civil authority coverage and to ingress/egress coverage. The bill would further prohibit COVID-19 from being construed as a pollutant or contaminant for purposes of any policy exclusion unless the exclusion specifically referred to viruses. The bill would apply to any All-Risk policy in effect on or after March 4, 2020 and is written to satisfy the standards for an “urgency” statute, taking effect immediately upon being signed into law.
Reprinted courtesy of
Scott P. DeVries , Hunton Andrews Kurth and
Andrea DeField, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Ms. DeField may be contacted at adefield@HuntonAK.com
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Housing Prices Up through Most of Country
December 20, 2012 —
CDJ STAFFHome prices in October were up more than six percent compared with prices in October 2011. The LA Times noted that some of the strongest gains were in California and Arizona. The Phoenix metropolitan area saw a 24.5% rise in home prices. In California, Riverside and Los Angeles were just above the national average, at 7.3% and 6.4%, contributing to the state’s overall nine percent increase.
The news wasn’t good throughout the entire country, as five states did not see any price increases. Mark Fleming, the chief economist at CoreLogic, a research firm in Irvine, California said that “the housing recovery that started earlier in 2012 continues to gain momentum.
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Competitive Bidding Statute: When it Applies and When it Does Not
April 15, 2024 —
Mason Fletcher - Ahlers Cressman & Sleight PLLCThe University of Washington (UW), a public university, aimed to secure a real estate developer for a new building on its campus. The proposal involved an 80-year ground lease (the “Lease”), and developers submitted bids. The selected developer would demolish an existing building, construct a new one, own it during the Lease at its own cost, and UW would lease back a portion, with ownership reverting to UW at the Lease’s end. Alexandria Real Equities, Inc. (ARE) was a finalist but ultimately was not selected, and the Lease was awarded to Wexford Science and Technology, LLC (Wexford). As a result, ARE filed suit against UW asserting three claims: 1) UW lacked authority to execute the Lease, 2) UW didn’t follow required competitive bidding procedures, and 3) UW’s developer selection process was arbitrary and capricious. None of these claims were successful and ARE appealed.
Division II of the Washington Court of Appeals affirmed in Alexandria Real Estate Equities Inc. v. Univ. of Wash., __ Wn. App. __, 539 P.3d 54 (2023), a published decision. The Court concluded, based on the facts in that case, that because construction was not publicly funded, UW did not have to follow competitive bidding requirements that were laid out in a statute relevant to state universities. Still, the Court applied the “bright-line cutoff point” that prohibits disappointed bidders from challenging an award once a contract has been executed. See Dick Enterprises, Inc. v. Metro. King County, 83 Wn. App. 566, 572, 922 P.2d 184 (1996).
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Mason Fletcher, Ahlers Cressman & Sleight PLLCMr. Fletcher may be contacted at
mason.fletcher@acslawyers.com
Privacy In Pandemic: Senators Announce Covid-19 Data Privacy Bill
May 11, 2020 —
Kyle Janecek & Jeffrey Dennis – Newmeyer Dillion"Data! Data! Data!. . . I can't make bricks without clay." This classic statement from Sherlock Holmes in The Adventure of the Copper Beeches takes on a new meaning in the COVID-19 pandemic. With the plans to begin contact tracing the spread of the COVID-19 pandemic slowly moving towards the forefront, a valid and important issue presents itself: how do we treat and protect the data we so desperately need to trace, track, and address the pandemic? U.S. Senators Wicker, Thune, Moran, and Blackburn introduced a possible solution to this problem with the COVID-19 Consumer Data Protection Act, as announced on April 30, 2020. So what does the Act entail? What information is protected? What action would businesses need to take towards individuals, such as consumers or even employees, in order to comply with this new legislation?
WHAT IS THE COVID-19 CONSUMER DATA PROTECTION ACT?
The Act is meant to address the concern regarding data collection and privacy due to large companies, like Google and Apple, adjusting the software within their devices to facilitate digital contact tracing. The Act can be broken up into three parts - the treatment of information; the privacy notice requirements; and the transparency requirements.
First, the Act prohibits the collection, processing, or transfer of certain categories of data without notice and the affirmative express consent of the individual, in order to:
- Track the spread of COVID-19,
- Trace the spread of COVID-19 through contact tracing, or
- Determine compliance with social distancing guidelines without the requisite notice to individuals and their express consent.
To accomplish this, the Act also restricts entities in their ability to collect excessive information, stating that an entity cannot collect information beyond what is reasonably necessary to conduct any of the three COVID-19 related purposes listed in the statute. The entity must also provide reasonable administrative, technical, and physical data security policies and practices to protect the information collected. Furthermore, in the event that the entity stops using the information for any of the three COVID-19 purposes, it must delete or de-identify the information it has collected.
Next, the Act describes the requirements for notice to individuals. In order to legally collect, process or transfer the information, the entity needs to provide the consumer with prior notice of the purpose, processing, and transfer of the data through their privacy policy within 14 days of the enactment of the law. This policy would have to:
- Disclose the consumer's rights in a clear and conspicuous manner prior to or at the point of collection,
- Be available in a clear and conspicuous manner to the public,
- Include whether the entity will transfer any of the information it collects in order to track or trace COVID-19 or determine compliance with social distancing,
- Describe its data retention policy, and
- Generally describe its data security measures.
Notably, many of these are already requirements common to many privacy policies, including the disclosure regarding the transfer of an individual's information.
In addition, an individual must give their affirmative express consent to such collection, processing and transfer. In other words, an individual must "opt-in" to having their information collected. This would be done through a checked box or electronic signature, as the law prohibits entities from inferring consent through a failure by the individual to take an action stopping the collection. Furthermore, the individual would also need the ability to expressly withdraw their consent, with the entity then having to cease collection, processing, or transfer of the information within 14 days of the revocation. In essence, due to the restriction on transferal, this may result in businesses opting to delete or de-identify data upon a revocation.
Finally, the entity would have to abide by certain reporting and transparency requirements, namely a monthly public report stating how many individuals had information collected, processed or transferred, and describing the categories of the data collected, processed or transferred by the entity and why. This is akin to the California Consumer Privacy Act's treatment of categories of information, though it would require this information to be released on an ongoing, monthly basis.
WHAT DATA IS COVERED?
Notably, the Act only affects a very limited scope of data. The Act covers geolocation data (exact real-time locations), proximity data (approximated location data), and Personal Health Information (any genetic/diagnosis information that can identify someone). This could cover information like Bluetooth communication or real-time tracking based on a cell phone's geolocation features. Notably, Personal Health Information does not include any information that may be covered under HIPAA or the broader categorization of "Biometric" data (i.e. retinal scans, finger prints, etc). Furthermore, and more generally, "publicly available information" is excluded, which includes information from telephone books or online directories, the news media, "video, internet, or audio content" as well as "websites available to the general public on an unrestricted basis." The latter of which potentially would push any and all information made available through social media (i.e. Facebook or Twitter) into the definition of "publicly available information."
HOW IS IT ENFORCED?
Generally, the law would be enforced by the FTC, under the provisions regarding unfair or deceptive acts or practices, similar to other enforcement actions arising out of privacy policies. Notwithstanding, state attorney generals may also bring actions to enforce compliance and obtain damages, civil penalties, restitution, or other compensation on behalf of the residents of the state.
WHAT SHOULD MY COMPANY DO?
If your entity plans on collecting information for tracking COVID-19, measuring social distancing compliance, or contact tracing, it is advisable to include language in your privacy policy now. This could be as simple as adding an additional provision within your privacy policy stating that the entity will retain information to conduct one of the three COVID-19 purposes as laid out in the statute. In addition, this also means that should the entity collect and use employee information for contact tracing, tracking the spread of COVID-19 or ensuring compliance with social distancing measures, it will need to disclose some of the specifics of that process to the employees and have them opt-in for the process. Finally, for contact tracing purposes, any individual that shares their diagnosis will have to opt-in for the entity to legally collect, process, and transfer that information to others.
While the time to reach compliance is unknown, it is more important than ever to form a compliance plan for privacy legislation if you do not already have a plan in place. If you decide to prepare with us, our firm has created a 90 day California Consumer Privacy Act compliance program (which can be expedited) where our team will collaborate with you to determine a scalable, practical, and reasonable way for you to meet your needs, and we will provide a free initial consultation. For further inquiries or questions related to COVID-19, you can consult with a Task Force attorney by emailing NDCovid19Response@ndlf.com or contacting our office directly at 949-854-7000.
Kyle Janecek is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis (CIPP/US) is the Head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
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Los Angeles Wildfires Rage on, Destroying Structures and Displacing Residents
January 14, 2025 —
Aileen Cho - Engineering News-RecordWildfires in Los Angeles have already destroyed thousands of buildings, but the full extent of the damage will not be known for some time, according to local officials during a media briefing Jan. 9.
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Aileen Cho, Engineering News-RecordMs. Cho may be contacted at
choa@enr.com
