Fairfield Connecticut Building Expert Directory

Best Practices: Commercial Lockouts in Arizona

April 10, 2023 — Patrick Tighe - Snell & Wilmer Real Estate Litigation Blog
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.

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Reprinted courtesy of Patrick Tighe, Snell & Wilmer
Mr. Tighe may be contacted at ptighe@swlaw.com

Construction Professionals Could Face More Liability Exposure Following California Appellate Ruling

December 17, 2024 — Jamison Rayfield & Brian Slome - Lewis Brisbois
San Diego/San Francisco, Calif. - The California Court of Appeal recently reversed a summary judgment ruling in favor of a geotechnical engineering firm that had conducted a brief inspection of a residential construction project's footing trench for $360. The case arose when homeowner Cheryl Lynch experienced significant property damage after her home's foundation failed and the structure began subsiding into a slope. Lynch sued Peter & Associates for professional negligence and nuisance, despite having no direct contractual relationship with the firm, which had been hired by her contractor to perform the geotechnical inspection. The court distinguished this case from Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, which had limited auditors' professional duty to third parties, noting that Bily dealt with purely economic damages, whereas Lynch involved physical property damage, making Bily's policy concerns about unlimited liability inapplicable. The court emphasized that construction professional negligence cases, particularly those involving residential property damage, warrant a different analysis than cases involving economic loss. Reprinted courtesy of Jamison Rayfield, Lewis Brisbois and Brian Slome, Lewis Brisbois Mr. Rayfield may be contacted at Jamison.Rayfield@lewisbrisbois.com Mr. Slome may be contacted at Brian.Slome@lewisbrisbois.com Read the court decision
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SEC Proposes Rule Requiring Public Firms to Report Climate Risks

April 11, 2022 — Debra K. Rubin - Engineering News-Record
The U.S. Securities and Exchange Commission issued a proposal March 21—both anticipated and feared—that would require publicly-traded companies to standardize disclosure for the first time of climate-related business risks such as those related to severe weather and decarbonization. Exchange-listed firms would also have to report greenhouse gas emissions, their own and in the supply chain, creating a major reporting mandate. The rules also apply to firms listed on overseas exchanges that operate in the U.S. Reprinted courtesy of Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story... Read the court decision
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Environmental Roundup – April 2019

May 06, 2019 — Anthony B. Cavender - Gravel2Gavel
Besides showers, this April brought a number of notable new environmental decisions issued by the federal courts. Before your mind turns to May and its flowers, here’s a summary: 1. DC Circuit. On April 23, 2019, the U.S. Court of Appeals for the DC Circuit decided the case of State of New York, et al. v. EPA. In the Clean Air Act amendments of 1990, the Congress established the Northeast Ozone Transport Region, composed of the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, the District of Columbia and a portion of Virginia. Recently, several of these states requested EPA to expand this region to include the “upwind states” of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remaining portions of Virginia. Doing so would assist the “downwind” states in complying with EPA’s 2008 Ozone standard. EPA rejected this request, which was then appealed to the DC Circuit by the states of Connecticut, Delaware, Maryland, Massachusetts, New York, Pennsylvania, Rhode Island and Vermont. Because of its unique properties, ozone created by emissions in the upwind states can be transported to the downwind states, thus allegedly hampering their ability to cope with EPA ozone standards. The court agreed that EPA has the authority to expand the Northeast Transport Ozone Transport Region, but it also has the ability to exercise its reasonable discretion not to do so. In addition, the agency’s decision to rely instead on the remedies available to it in in the Clean Air Act’s “Good Neighbor” provision was reasonable and adequately justified, and the court accordingly upheld the agency’s decision. The court also noted that other remedies may be available to the downwind states, just not this one. 2. DC Circuit. The Court also decided on April 23, 2019 the case of Air Transport Association of America v. Federal Aviation Administration. The FAA held that the payments made by the City of Portland’s airport’s utility city charges for offsite stormwater drainage and Superfund remediation was not an “impermissible diversion” of airport revenues or in violation of the “Anti-Head Tax Act,” which is codified at 49 USC Section 40116(b) and which prohibits collecting a tax on persons travelling in air commerce. Here, the charges are assessed against the airport for the use by the airport of the city’s water and sewage services. The Superfund assessment is based on the fact that the Willamette River which runs through downtown Portland could make the city a Superfund potentially responsible party, and the cty is assessing all rate payers—including the airport—a Superfund assessment. The airport is federally funded and is owned and operated by the Port of Portland, and the Port pays a combined sewer, stormwater /water bill with multiple line items including these contested items. The court notes that federal law, in particular 49 USC Section 47107(k)(2), authorizes airport revenues to be used for the operating costs of the airport receiving federal funding, and the FAA could reasonably determine that these general expenses are authorized airport “operating costs” even though the city services are provided outside the boundaries of the airport. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Harrisburg Sought Support Before Ruinous Incinerator Retrofit

September 20, 2017 — Jonathan Barnes & Richard Korman - Engineering News-Record
When former Harrisburg, Pa., Mayor Stephen Reed (D) and his aides set out to retrofit the city’s aging incinerator in late 2000, the project spun out of control over the coming years, enlarging the debt the city owed on the facility to $300 million and sinking Harrisburg into financial ruin. Reprinted courtesy of Jonathan Barnes, ENR and Richard Korman, ENR ENR staff may be contacted at ENR.com@bnpmedia.com Read the court decision
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Insurer's Motion for Summary Judgment on Business Interruption Claim Denied

September 12, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion to cap a potential business interruption claim after the insured failed to provide documentation was denied. Lake Charles Instruments Inc. v. Scottsdale Ins. Co., 2022 U.S. Dist. LEXIS 116802 (W.D. La. July 2, 2022). Plaintiff operated a business that was damaged during Hurricane Laura on August 27, 2020, and subsequently by Hurricane Delta on October 9, 2020. Plaintiff had a commercial property policy issued by Scottsdale that provided business income coverage of up to $500,000. After Hurricane Laura, plaintiff submitted a claim. Plaintiff requested an advance. Scottsdale paid $50,000 on the business interruption (BI) claim while reserving rights to require full compliance with the policy, including submission of appropriate documentation. Scottsdale continued to request documentation, but none was received. Plaintiff also failed to provide documentation for its BI claim after Hurricane Delta. When documentation was finally provided, Scottsdale disputed that the documentation showed a BI claim that exceeded policy limits. Scottsdale determined the BI claim was below the policy limits. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Federal Contractors – Double Check the Terms of Your Contract Before Performing Ordered Changes

July 08, 2019 — Jonathan Schirmer - Ahlers Cressman & Sleight PLLC
As federal contractors may be aware, the general rule when performing a contract for the federal government is that only the contracting officer (“CO”) can bind the government. Often, the CO delegates responsibility to a contracting officer’s representative (“COR”). While in some cases a COR may be able to bind the federal government, the contract may limit that ability exclusively to the CO. Important for our clients, it is the responsibility of the contractor to determine whether the COR can legally bind the federal government when ordering changes to the scope of work. [1] This is true even when a COR possesses apparent authority to order changes to the work, and when the project is almost exclusively overseen by COR’s. [2] A recent case highlights the dangers of a contractor relying on the orders of a COR when performing work outside the scope of a contract. In Baistar Mechanical Inc., a contractor was awarded a maintenance and snow removal contract with the federal government. The contract expressly stated that only the CO had contracting authority regarding additional or changed work. [3] However, Baistar, the contractor, argued it was directed by the contracting officer’s representatives to perform work outside of the contract. Read the court decision
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Reprinted courtesy of Jonathan Schirmer, Ahlers Cressman & Sleight PLLC
Mr. Schirmer may be contacted at jonathan.schirmer@acslawyers.com

Presidential Memorandum Promotes Reliable Supply and Delivery of Water in the West

November 14, 2018 — Anthony B. Cavender - Gravel2Gavel
In a Memorandum dated October 19, 2018 and entitled Promoting the Reliable Supply and Delivery of Water in the West, the President has directed the Secretaries of the Interior and Commerce to work together to minimize “unnecessary regulatory burdens and foster more efficient decision-making” so that major federal water projects are constructed and operated in a manner that delivers water and power in an “efficient, cost-effective way.” More specifically, they will take steps to streamline the western water infrastructure regulatory processes and remove unnecessary burdens in accordance with the timetables set forth in the Memorandum. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES