Be Proactive, Not Reactive, To Preserve Force Majeure Rights Regarding The Coronavirus
March 30, 2020 —
David Adelstein - Florida Construction Legal UpdatesIf you are involved in construction, NOW is the time to consider the potential force majeure impacts associated with the pandemic Coronavirus. Things are beginning to drastically change on a minute-by-minute basis. From travel restrictions, to the suspension or cancellation of events on an international level, to company-wide policies and restrictions, the global uncertainty has led to the possibility that a force majeure delay will occur. Thinking otherwise is not being proactive. The Coronavirus, and the impacts / delays associated therewith, is beyond anyone’s control. Due to the uncertainty, it is hard to fathom at this time a reasonable challenge to someone’s reaction to this concern or their companywide response to the concern.
If you are a contractor, subcontractor, or even a supplier, my suggestions would be as follows:
- Revisit your contracts and see what type of force majeure language it has – anything relating to delays beyond your control or epidemics;
- Examine to see whether you have a basis for additional compensation AND additional time;
- Examine what type of notice you are required to provide for force majeure events;
- Be proactive – send notice now of the potentiality that this pandemic can impact / delay the job –no one should take offense to this letter as this pandemic has impacted all walks of life;
- If an impact occurs, send follow-up notice accordingly to ensure rights under the contract are preserved; and
- For future contracts, incorporate language that specifically addresses epidemics and pandemics now that the occurrence of this issue has become real.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Sold Signs Fill Builder Lots as U.S. Confidence Rises: Economy
June 26, 2014 —
Shobhana Chandra and Nina Glinski – BloombergBuyers swarmed builder lots in May to propel the biggest gain in sales of new homes in 22 years, while consumer confidence this month was the strongest since 2008, showing how an improving U.S. job market is giving the economy a much-needed lift.
Home sales jumped 18.6 percent, the largest one-month surge since January 1992, to a 504,000 annualized pace, according to figures from the Commerce Department today in Washington. Another report showed household sentiment climbed in June to the highest point since the early days of the recession that began more than six years ago.
Payroll gains that have exceeded 200,000 workers for four consecutive months and stable borrowing costs at historically low levels are giving Americans the assurance to step back into the real-estate market. The need for builders such as Hovnanian Enterprises Inc. (HOV) to keep up with the growing demand will lead to gains in construction that will boost the economic expansion.
Ms. Chandra may be contacted at schandra1@bloomberg.net; Ms. Glinski may be contacted at nglinski@bloomberg.net
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Shobhana Chandra and Nina Glinski, Bloomberg
Coloradoans Deserve More Than Hyperbole and Rhetoric from Plaintiffs’ Attorneys; We Deserve Attainable Housing
January 09, 2015 —
David M. McLain – Colorado Construction LitigationAs the 2015 Colorado legislative session gets underway, the media attention and discussion regarding the lack of attainable housing, skyrocketing rental rates, and the ongoing state and local efforts to reverse these trends have risen to a dull roar. The hyperbole and rhetoric from those who would oppose any reforms has risen to cacophonous levels.
Among the most often quoted talking points from the opposition are that any changes to Colorado’s existing laws would strip homeowners of their right to seek redress for construction defects and that they would virtually insulate construction professionals from such claims. The long and the short of it is that if this year’s legislation looks anything like SB 220 from last year, nothing could be further from the truth. The two main provisions from SB 220 were: 1) protection of a construction professional’s ability to resolve construction defect claims through arbitration; and 2) requirement of informed consent of more than 50% of the owners within a common interest community before a construction defect action could begin. Neither of these changes would strip homeowners of any rights and they certainly would not insulate construction professionals from construction defect actions.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Homebuilders Leading U.S. Consumer Stocks: EcoPulse
February 14, 2014 —
Anna-Louise Jackson and Anthony Feld – BloombergShares of U.S. homebuilders are leading consumer discretionary stocks as the new home market is poised to rebound faster than other cyclical purchases this year.
The Standard & Poor’s Supercomposite Homebuilding Index -- made up of Toll Brothers Inc. (TOL), NVR Inc. and nine others -- has risen 20 percent since Nov. 11. The S&P 500 GICS Consumer Discretionary Sector Index -- which includes Lennar Corp. (LEN), PulteGroup Inc. (PHM), D.R. Horton Inc. and 81 other companies such as Home Depot Inc. and Lowe’s Cos. -- is up 1.9 percent during the same period. This follows about 10 months when homebuilders lagged behind by 45 percentage points.
Shares of companies that construct new residences are a source of relative strength in what’s proven to be a “more difficult market” this year, as the S&P 500 slid almost 6 percent in less than three weeks, said Michael Shaoul, chairman and chief executive officer of Marketfield Asset Management LLC in New York, which has more than $20 billion in assets. The recent rally in homebuilders suggests “a very important transition of leadership within the consumer discretionary sector” is underway, benefiting this segment of the broader cyclical group, he said.
Ms. Jackson may be contacted at ajackson36@bloomberg.net; Mr. Feld may be contacted at afeld2@bloomberg.net
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Anna-Louise Jackson and Anthony Feld, Bloomberg
Construction Law Alert: Unlicensed Contractors On Federal Projects Entitled To Payment Under The Miller Act
May 07, 2014 —
Steven M. Cvitanovic and Jessica M. Lassere Ryland - Haight Brown & Bonesteel, LLPAs a matter of first impression, the Ninth Circuit Court of Appeals in Technica LLC ex rel. U.S. v. Carolina Cas. Ins. Co., 12-56539, 2014 WL 1674108 (9th Cir. Apr. 29, 2014), allowed an unlicensed subcontractor to recover from a prime contractor for unpaid services relating to a federal construction project under a federal Miller Act claim. California law otherwise prevents unlicensed contractors from recovering for unpaid work on non-federal projects as a penal measure intended to encourage contractors to maintain a valid license at all times.
Technica LLC (“Technica”) worked as a sub-subcontractor on a large federal fence replacement project (the “Project”). Over the course of a year, Technica supplied nearly a million dollars worth of labor, materials, and services for the Project. However, Technica received only $287,861.81 in partial payments for its work. Technica proceeded to file suit in district court against the prime contractor Candelaria Corporation (“Candelaria”) and its payment surety Carolina Casualty Insurance Company (“CCIC”) under the Miller Act to recover amounts owed to it on the subcontract against the payment bond.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel, LLP and
Jessica M. Lassere Ryland, Haight Brown & Bonesteel, LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Ms. Lassere Ryland may be contacted at jlassere@hbblaw.com
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Construction in the Time of Coronavirus
March 30, 2020 —
Christopher G. Hill - Construction Law MusingsOne cannot look look at one’s phone, computer or even the road outside the window without seeing signs of the impact that coronavirus (COVD-19) is having on the world at large. Schools are shut down, traffic is lighter and there is the daily count of new confirmed cases, in Virginia and elsewhere. “Social distancing” is the buzzword of the day. I am writing this post from a home office because of CDC and other guidance regarding the best way to “flatten the curve.” We have all been told to avoid large groups and stay close to home.
All of this is well and good, but construction must go on. In travelling around Richmond, I see construction vehicles on the road quite a bit. This is a good thing. It seems that most of the Richmond, Virginia area contractors are trying to stay as close to “business as usual” as possible while still remaining vigilant and careful to follow CDC and OSHA guidelines on workplace activity and COVD-19. However, the situation is ever changing and government and other outside forces could lead to project slowdowns, project shutdowns or other virus related impacts to everything from permitting to staffing of a project.
As I have discussed, likely ad nauseam, any commercial or residential construction project is controlled by a series of contracts (hopefully well drafted) that control the relationships on the job. Subcontractors in particular have the provisions of their subcontract and those of the prime contract to worry about. One of the major provisions that could trip up any construction professionals on these jobs is the notice provision of the subcontract (thanks for the reminder go to a friend and fellow construction lawyer Mark Cobb at his blog).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Brief Overview of Rights of Unlicensed Contractors in California
September 10, 2014 —
William M. Kaufman – Construction Lawyers BlogUnder California Contractor’s State License Law enumerated in Business and Professions Code Sections 7000 to 7191, a contractor may not “bring or maintain” any action for compensation for performing any act or contract for which a license is required unless the contractor was duly licensed “at all times” during performance. Bus & Prof Code Section 7031(a).
What does this mean and who does it include?
This is a question that often has to be answered on a case by case basis. Basically, California does not want unlicensed contractors to be able to get paid for work that should be performed by a licensed contractor. The law has set forth some general parameters. General contractors, subcontractors, and master developers must be licensed. However, suppliers, manufacturers, laborers and equipment lessors are exempt and do not need a contractor’s license. Essentially, those parties that merely furnish material or supplies without fabricating them into, or consuming them in the performance of work, do not need to be licensed. Bus & Prof Code Section 7052.
There are sever fines and penalties for those who improperly perform construction work without a license. A contract between any contractor and an unlicensed subcontractor is a misdemeanor. Lack of a license bars all actions in law or in equity for collection of compensation for the performance of work requiring a license. There are very few exceptions to this rule. A “savvy” unlicensed contractor cannot simply avoid these requirements by “subbing” out all the work to licensed contractors. Any person who uses the services of an unlicensed contractor may file a court action or cross-complaint to recover all payments made to the unlicensed contractor. In addition, a person who uses the services of an unlicensed contractor is a victim of a crime and eligible for restitution of economic losses regardless of whether that person had knowledge that the contractor was unlicensed. Bus. & Prof Code Sections 7028, 7028.16. It goes without saying that performing work without a license on projects is a bad idea.
Reprinted courtesy of
William M. Kaufman, Lockhart Park LP
Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com
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Maria Latest Threat to Puerto Rico After $1 Billion Irma Hit
September 20, 2017 —
Brian K. Sullivan & Ezra Fieser - BloombergHurricane Maria was on course to hit Puerto Rico just two weeks after Irma caused as much as $1 billion in damages on the bankrupt island.
Maria’s top winds were at 155 miles (250 kilometers) an hour, the National Hurricane Center said in a notice around 6 a.m. New York time. At Category 5, the strongest classification on the five-step Saffir-Simpson scale, Maria was about 35 miles southeast of San Juan in Puerto Rico.
Reprinted courtesy of
Brian K. Sullivan, Bloomberg and
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