Cambridge Massachusetts Building Expert Directory

Bank Window Lawsuit Settles Quietly

October 02, 2013 — CDJ STAFF
The Federal Reserve Bank of St. Louis has filed a motion to dismiss its breach of contract lawsuit over the windows McCarthy Building installed in the bank’s building. The bank alleged that the 498 windows were defective and needed to be replaced at a cost of about $1.5 million. But on September 11, the bank acted to dismiss the suit following a settlement with the defendants. The terms of the settlement was not disclosed. All parties will be covering their own legal costs. Read the court decision
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Caveat Emptor (“Buyer Beware!”) Exceptions

May 10, 2021 — David Adelstein - Florida Construction Legal Updates
There is value to a seller when it comes to entering into an as-is transaction and stating that the seller has NOT made any representation or warranty, all such representations or warranties are disclaimed, the buyer is NOT relying on any representation of the seller, and that the buyer is relying on its own inspection of the property. This shifts the onus to the buyer to undertake the inspection or due diligence it needs to take relating to the property it wants to buy. With respect to commercial property transactions:

The doctrine of caveat emptor, which Florida courts continue to apply, “places the duty to examine and judge the value and condition of the property solely on the buyer and protects the seller from liability for any defects.” There are, however, three exceptions to this doctrine, including: “1) where some artifice or trick has been employed to prevent the purchaser from making independent inquiry; 2) where the other party does not have equal opportunity to become apprised of the fact; and, 3) where a party undertakes to disclose facts and fails to disclose the whole truth.” Florida Holding 4800, LLC v. Lauderhill Mall Investment, LLC, 46 Fla. L. Weekly D785b (Fla. 4th DCA 2021).

These three exceptions to caveat emptor, or the doctrine of buyer beware, are not easy to prove because it places a burden on a buyer to prove an active effort from the seller to conceal a material fact to skirt around the as-is language. Again, this is not an easy burden to prove. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Two Injured in Walkway Collapse of Detroit Apartment Complex

May 30, 2018 — Beverley BevenFlorez-CDJ STAFF
ABC WXYZ Local News reported that a balcony collapsed at the Anthoes Garden Apartments in Detroit, Michigan. Two people were witnessed falling from the upper walkway through the second and third floors, landing on the cement, sidewalk below. Neighbors pulled the thirty-something woman out of the debris, but the sixty-something man remained trapped under cement chunks and told the rescuers that he could not breathe. The neighbors used car jacks to raise the cement blocks to relieve pressure while waiting for help to arrive. Firefighters rescued residents from the apartments. The fire marshall condemned the building. However, according to ABC News, "people who live in apartments nearby are afraid to leave because of the walkway's instability." Read the court decision
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Walkability Increases Real Estate Values

June 18, 2014 — Beverley BevenFlorez-CDJ STAFF
CNBC reported that environmentally-conscious Millennials are looking for homes that are within walking or biking distance to stores and work. The “areas that offer so-called walkability should see more home buyers and renters than those that don't.” "Cities that want to thrive in our new economic and demographic realities will need to find ways to create and support more of these dynamic, productive walkable districts that are in high demand," Geoff Anderson, CEO of Smart Growth America, told CNBC. Anderson, “in conjunction with George Washington University School of Business, released a new report ranking the walkability of the nation's 30 largest metropolitan areas.” Read the court decision
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Florida Court Puts the Claim of Landlord’s Insurer In The No-Fly Zone

March 06, 2023 — William L. Doerler - The Subrogation Strategist
In United States Aviation Underwriters v. Turnberry Airport Holdings, LLC, No. 3D22-270, 2023 Fla. App. LEXIS 1207 (U.S. Aviation), the Court of Appeal of Florida, Third District (Appellate Court) considered whether the insurer for a commercial landlord could pursue subrogation against the landlord’s tenant. Based on the terms of the lease between the landlord and the tenant, the Appellate Court held that the landlord’s insurer could not pursue subrogation. In U.S. Aviation, the defendant, Turnberry Airport Holdings, LLC (Turnberry Airport) leased space to an insured aircraft owner. The lease contained the following provision: TENANT agrees that all policies of insurance obtained by it in connection with the Space or as required hereunder shall contain appropriate waiver of subrogation clauses. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Seattle Condos, Close to Waterfront, Construction Defects Included

February 11, 2013 — CDJ STAFF
There's a cluster of eight condominium projects in Seattle, some within easy walking distance of each other, that are either in construction defect lawsuits, arbitration, or mediation. Jeff Reynolds, contributing a Seattle PI.com reader blog, notes that as Seattle condo projects have neared the end of the four-year warranty period, condo boards are being targeted by attorneys. Reynolds writes that "once [the attorneys] are hired by the associations, they retain specialists that test for any and all construction defects with the building envelope." The problem that Reynolds sees is that that "major lending institutions stay away from condos with lawsuits." And so homeowners dealing with construction defects have apartments they can't sell to anyone who might want to use financing. This tightens Seattle's already limited inventory, leading to both frustrated sellers and frustrated buyers. Read the court decision
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When to Withhold Retention Payments on Private or Public Projects

August 29, 2018 — Nicholas Karkazis - Gordon & Rees Construction Law Blog
To ensure that construction contractors and subcontractors receive timely progress and retention payments, the California Legislature enacted statutes that impose deadlines and penalties on owners and direct (general) contractors who delay payments. (Cal. Civ. Code, §§ 8800, 8802, 8812, 8814; Pub. Contract Code, §§ 7107, 10262.5; Bus. & Prof. Code, § 7108.5.) However, there is an exception to these deadlines and penalties on both private and public projects. The exception allows an owner or direct contractor to withhold payment1 when there is a good faith dispute between an owner and a direct contractor or between a direct contractor and a subcontractor. (Civ. Code, §§ 8800, subd. (b), 8802, subd. (b), 8812, subd. (c), 8814, subd. (c); Pub. Contract Code, §§ 7107, subds. (c), (e), 10262.5, subd. (a); Bus. & Prof. Code, § 7108.5, subd. (a).) But the term “good faith dispute” has been a source of confusion where direct contractors owe subcontractors retention payments, but want to withhold the payment because of a dispute.2 California appellate courts were split, with one court finding that any type of bona fide dispute justified withholding, and another finding that only disputes related to the payment itself justified withholding. (Compare Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc. (2009) 179 Cal.App.4th 1401 [any bona fide dispute could justify withholding] with East West Bank v. Rio School Dist. (2015) 235 Cal.App.4th 742 [disputes related to the payment itself may justify withholding].) In May 2018, the California Supreme Court clarified that for a direct contractor to withhold a retention payment on a private project, the good faith dispute must somehow relate to the payment itself. (United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1097-1098.) Read the court decision
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Reprinted courtesy of Nicholas Karkazis, Gordon & Rees Scully Mansukhani
Mr. Karkazis may be contacted at nkarkazis@grsm.com

Aarow Equipment v. Travelers- An Update

January 16, 2024 — Christopher G. Hill - Construction Law Musings
Previously here at Musings, I discussed the application of pay if paid clauses and the Miller Act. The case that prompted the discussion was the Aarow Equipment & Services, Inc. v. Travelers Casualty and Surety Co. case in which the Eastern District of Virginia Federal Court determined that a “pay if paid” clause coupled with a proper termination could defeat a Miller Act bond claim. However, as I found out a couple of weeks ago at the VSB’s Construction Law and Public Contracts section meeting, the 4th Circuit Court of Appeals reversed and remanded this case in an unpublished opinion (Aarow Equipment & Services, Inc. v. Travelers Casualty and Surety Co.) In it’s opinion, the 4th Circuit looked at some of the more “interesting” aspects of this case. One of these circumstances was that Syska (the general contractor) directed Aarow to construct sedimentary ponds and other water management measures around the project (the “pond work”), which both agreed was outside of the scope of the work defined in their subcontract. Syska asked that the government agree to a modification of the prime contract and asked Aarow to wait to submit its invoice for the pond work until after the government issued a modification to the prime contract and Syska issued a change order to the subcontract. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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