Pennsylvania Mechanics’ Lien “Waivers” and “Releases”: What’s the Difference?
March 19, 2015 —
Thomas C. Rogers – White and Williams LLPIn the world of Pennsylvania mechanics’ liens there is much confusion about the interchangeable use of the words mechanics lien “waiver” and mechanics’ lien “release.” Many who work in the world of real estate in Pennsylvania, be they contractors, subcontractors, developers, lenders, or attorneys, use these terms interchangeably without understanding that there is a meaningful difference. Failure to understand the difference creates confusion when discussing issues and drafting documents regarding mechanics’ liens.
In Pennsylvania a mechanics’ lien “waiver” is the pre-construction waiver of liens that was historically executed by a general contractor and an owner and filed with the Prothonotary in the county in which construction is located. These pre-construction lien “waivers,” assuming they were properly prepared, signed by the contractor and owner and filed in accordance with applicable law, negated the ability of that contractor and its subcontractors to file a mechanics’ lien on the subject property. These pre-construction lien “waivers” were part of every construction loan closing up through the amendments to the Pennsylvania Mechanics’ Lien Act that went into effect in 2007. Since 2007, the Mechanics’ Lien Act has been amended twice to further address those circumstances in which pre-construction lien waivers still have vitality. Except with respect to those narrow situations specifically provided for in the statute, pre-construction lien “waivers” are against public policy in Pennsylvania.
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Thomas C. Rogers, White and Williams LLPMr. Rogers may be contacted at
rogerst@whiteandwilliams.com
Court Says No to Additional Lawyer in Las Vegas Fraud Case
October 14, 2013 —
CDJ STAFFLeon Benzer, who has been accused of being one of the masterminds of the Las Vegas HOA scam, has been denied in his bid to add an additional attorney to his publicly-funded defense. Daniel Albregts, Benzer’s court-appointed attorney, made the request due to the large amount of evidence in the case. Federal prosecutors have provided the defense with more than 3.4 million pages of documents. According to U. S. Magistrate Judge George Foley Jr., “defendant’s counsel should be able to prepare and provide an adequate defense with the assistance of appropriate paralegal and other support services.”
Mr. Albregts is currently assisted by Russell Aoki, whose role is that of technical consultant on matters regarding electronic distribution. Federal prosecutors opposed Mr. Albregts hiring Franny Forsman, a former federal public defender. Had Ms. Forsman been hired, the government would have paid $110 per hour for her services. The government is seeking $25 million in restitution from Mr. Benzer.
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California Case Is a Reminder That Not All Insurance Policies Are Alike Regarding COVID-19 Losses
April 05, 2021 —
Neal I. Sklar & Joshua A. Morehouse - Peckar & Abramson, P.C.A recent case from the Central District of California reminds us that not all insurance policies are alike. Depending on the particular policy, losses from the COVID-19 outbreak could qualify as property damage and therefore could be recoverable under an all-risk insurance policy.
COVID-19 has in many cases imposed significant costs on contractors, and in a host of ways. Contractors’ attempts to recover these costs from owners or insurers have at times been frustrated by contractual or policy language written after a lengthy time, during which the risk of a pandemic on the scale of COVID-19 was not as much of a concern as it is now. This has led contractors to explore new, often creative legal theories in their attempts to recover costs flowing from COVID-19.
A recent Complaint filed in the Central District of California focuses on all-risk property insurance policies and the potential for contractors who have purchased such policies to classify contamination from COVID-19 as an insurable property loss.
In AECOM v. Zurich Insurance Company, Case No. 2:21-cv-00237-JAK-MRW (C.D. Cal), a contractor purchased “all-risk” property insurance from Zurich. This policy covered “economic losses from all risks not expressly excluded.” According to the Complaint, the presence of COVID-19 on its properties “physically alter[ed] air, airspace, and surfaces preventing… (the contractor) from using its properties for their intended purpose and function.”
Reprinted courtesy of
Neal I. Sklar, Peckar & Abramson, P.C. and
Joshua A. Morehouse, Peckar & Abramson, P.C.
Mr. Sklar may be contacted at nsklar@pecklaw.com
Mr. Morehouse may be contacted at jmorehouse@pecklaw.com
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Untangling Unique Legal Issues in Modern Modular Construction
September 09, 2024 —
Chad Theriot & Brad Sands - Construction ExecutiveModular construction has grown significantly over the last few years and shows no signs of slowing down. This construction method is a departure from traditional approaches where all construction activity occurs onsite. Modular construction involves building standardized project components—usually in an offsite, controlled environment—which are then transported and assembled at the project site. Offsite construction generally allows for better quality control and economic efficiency, as it can utilize an assembly-line process. Modular fabrication can also centralize skilled labor in regions with lower labor costs.
Establishing each party's expectations upfront is always important, but even more so in modular construction since much of the construction activity is performed away from the ultimate project site. This requires extensive coordination among designers, fabricators, installers and owners to ensure construction, testing and quality progresses accordingly. Every field change and design clash could have an exponential impact on the modular fabrication efficiencies given the assembly-line approach and remote nature of modular work.
Reprinted courtesy of
Chad Theriot & Brad Sands, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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South Carolina Law Clarifies Statue of Repose
July 11, 2011 —
CDJ STAFFA new law in South Carolina, H 3375, fixes a loophole in that state’s statute of repose. State law puts a cap of eight years on construction defects, but the 2008 law that set that limit had a loophole that would allow for construction defect claims to start thirteen years after construction. The law also provides a cap on punitive damages.
The measure was backed by the Carolinas Association of General Contractors. Their spokesperson said that the legislation “increases our state’s ability to be economically competitive and helps protect our members from frivolous lawsuits.”
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Read South Carolina H 3375…
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“You Can’t Make Me Pay!”
January 28, 2025 —
Daniel Lund III - LexologySeveral years ago, Louisiana enacted a law prescribing a mandamus proceeding for unpaid contract sums purportedly owed by a public entity to a contractor – Louisiana Revised Statute 38:2191. The statute tackles both progress payments and final payment, distinguishing between the two and allowing withholding of a progress payment when there is “reasonable cause” to do so.
On the other hand, at least one Louisiana appellate decision held on the topic of final payment: once a final payment amount is “due” per the statute – based upon passage expiration of the lien period following “formal final acceptance” – the act of making the final payment is purely ministerial and not subject to defenses. According to that court, a defense to payment based on assessed liquidated damages – because the damages were disputed by the contractor – could not trump the essence of the statute allowing the contractor to pursue mandamus to collect the final payment.
More recently, on a public works levee project in Lafourche Parish, a dispute arose during the work concerning the means to secure material for constructing the levees. The net effect of the dispute entailed a major change in the contract price.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Major Changes in Commercial Construction Since 2009
December 11, 2013 —
CDJ STAFFA new report from Jones Lang LaSalle tracks some of the changes that the commercial building industry has seen since 2009. One important change is that financing has returned. In reviewing the report, Buildings.com notes that “commercial lending conditions are improving.” A less positive change is that construction costs have gone up, with the increase in residential construction pushing prices up in commercial construction. Green construction has gone from a luxury to something owners and developers want.
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Construction Group Seeks Defense Coverage for Hard Rock Stadium Claims
December 09, 2019 —
Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery BlogIn an insurance coverage action pending in the S.D.N.Y., Hunt Construction Group (Hunt) contends that Berkley Assurance Company wrongfully denied defense coverage for claims arising out of the renovation of Hard Rock Stadium (home to the Miami Dolphins and Miami Hurricanes football teams).
The stadium owner, South Florida Stadium LLC (SFS), hired Hunt to serve as the construction manager for the renovation project. Hunt subcontracted with Alberici Constructors Inc. (Alberici) to design and fabricate roof structures for the stadium.
Hunt and SFS sued Alberici over its work on the project. In March 2017, Alberici asserted counterclaims against Hunt and SFS. In May 2018, SFS sought defense and indemnification from Hunt with respect to Alberici’s coverage claims.
Hunt is insured under claims made and reported professional liability insurance policies issued by Berkley with policy periods from June 15, 2016 to June 15, 2017 (with an automatic extended reporting period through August 14, 2017) and from July 15, 2017 to June 15, 2018. Hunt notified Berkley of Alberici’s counterclaim on July 20, 2017 (within the extended reporting period of the 2016-2017 policy) and of SFS’s indemnity claim on June 5, 2018 (within the 2017-2018 policy period).
Reprinted courtesy of
Sergio F. Oehninger, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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