Pillsbury Insights – Navigating the Real Estate Market During COVID-19
July 06, 2020 —
Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate BlogUntil COVID-19 officially took hold in the U.S. in March of 2020, the U.S. real estate market was active, even robust. Starting in March, however, the possible scope of the pandemic and the sudden imposition of stay-at-home orders resulted in deal volume falling precipitously—with sales, leasing and lending transactions being put on temporary “wait and see” pause or terminated altogether.
The impact of COVID-19 on the real estate market has not been felt evenly. Hotels have been hit extremely hard, with many hotels shuttered altogether and many others only open at staggeringly low occupancy rates. Retail likewise has been virtually shut down in various parts of the country—with retailers across the country asking for rental forbearance or lease surrenders and others, such as J Crew, Neiman Marcus and Pier 1, pursuing bankruptcy reorganizations or liquidation. Multifamily has also been relatively hard hit, and landlords are having to navigate a web of local, state, and even federal regulations regarding tenant protections, such as non-eviction orders. The least affected sector so far has been office—however employers and office space users who are becoming facile with zoom and “working at home” may well re-examine their usage of office space—and it is within the realm of possibility to imagine that even this sector may come under pressure over time.
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Caroline A. Harcourt, PillsburyMs. Harcourt may be contacted at
caroline.harcourt@pillsburylaw.com
Congratulations to Partner John O’Meara for Being Named as One of America’s Top 100 Civil Defense Litigators for Three Consecutive Years!
September 20, 2021 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPPlease join Bremer Whyte Brown & O’Meara, LLP in congratulating Woodland Hills Partner John O’Meara for being selected as one of America’s Top 100 Civil Defense Litigators for the third year in a row!
Membership among America’s Top 100 Civil Defense Litigators highlights the accomplishments of the nation’s most esteemed and skilled Civil Defense attorneys. Only 100 attorneys in each state receive this honor and candidates for membership are identified through third-party research or peer nominations by America’s Top 100 or elite attorneys in the community. Candidates are judged by the attorney’s lifetime legal achievements, professional experience, significant case results, peer reputation, client satisfaction, other notable honors, media notoriety, and community impact.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
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Trumark Homes Hired James Furey as VP of Land Acquisition
April 08, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to GlobeSt.com, “Homebuilder Trumark Homes has hired James Furey as VP of land acquisition.” The “veteran developer” has held positions at Meritage Homes, Richmond American Homes, and Beazer Homes USA.
“James is a versatile manager who brings a wealth of experience in many elements of the homebuilding process,” Jason Kliewer, partner and general counsel for Trumark, told GlobeSt.com. “He will be an invaluable asset as Trumark moves aggressively in the California market.”
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No Coverage Under Installation Policy When Read Together with Insurance Application
January 16, 2024 —
David Adelstein - Florida Construction Legal UpdatesA recent case out of the Eleventh Circuit denied an underground contractor’s claim under what appears to be a commercial property installation floater policy (inland marine coverage) that covers the contractor’s materials. Whereas a builder’s risk policy is more expansive, an installation floater is narrower and can provide protection to a contractor for materials and equipment in transit, stored, or being installed subject to the terms of the installation floater policy. It can provide coverage to a trade subcontractor for materials that aren’t covered by builder’s risk.
In Travelers Property Casualty Company of America v. Talcon Group, LLC, 2023 WL 8798053 (11th Cir. 2023), an underground utility contractor that had a general contractor’s license had an installation policy that provided coverage “only for underground utility operations and the site development work tied to those operations.” Talcon Group, supra, at *1. The utility contractor was constructing two residential homes that was on land owned by an affiliated family entity. During construction of the residential homes, a wildfire destroyed the homes prior to the issuance of certificates of occupancy. The utility contractor submitted a notice of loss to its insurance carrier that provided the installation policy. The carrier denied the claim because the construction of the homes was NOT the same type of work as the installation of underground utilities which was covered. An insurance coverage lawsuit ensued.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
America’s Infrastructure Gets a D+
March 16, 2017 —
Garret Murai – California Construction Law BlogThe American Society of Civil Engineers (ASCE) has issued their 2017 Infrastructure Report Card, which assigns a letter grade to the nation’s infrastructure.
Our country’s grade in 2017? A disappointing D+.
Although, if you’re a glass half full kind of person (bless your soul) at least our grade didn’t fall since the last report card was issued in 2013, when our grade was a D+ as well.
In short, we suck. Although, apparently, we don’t suck evenly across the board.
ASCE has divided its cumulative GPA into grades for specific courses, if you will. Our transit systems received a grade of D-; our airports, dams, drinking water and waste water plants, inland waterways, levees and roads received a grade of D; our power plants, hazardous waste plants, public parks and schools received a grade of D+; our bridges, ports and solid waste plants a grade of C+, and our rail systems received a grade of B.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction
December 20, 2021 —
Luke Mecklenburg - Snell & Wilmer Real Estate Litigation BlogLast year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2. Thus, Woodbridge II concluded, the claimants acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context. Id. That decision was up for review by the Colorado Supreme Court at the time of my prior post. It has now been affirmed, thereby settling an arguable appellate decision split created by Woodbridge II. See Lo Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 2021 CO 56 (“Woodbridge”).
“Like the division below, and for much the same reasons,” the Colorado Supreme Court affirmed in Woodbridge “that under Colorado law, a claimant’s acknowledgement or recognition of the owner’s title during the claimant’s asserted prescriptive period does not interrupt the prescriptive use or undermine the claimant’s adverse use.” Woodbridge, ¶ 2. Writing for a unanimous court, Justice Gabriel’s opinion agreed with the Court of Appeals’ reasoning “that although Woodbridge recognized that it did not hold title, no evidence indicated that it had acted in subordination to the owner’s title.” Id. ¶ at 13. The Court further agreed with Woodbridge II’srejection of Lo Viento’s “permissive use” argument because “the permission offered … was conditional and Woodbridge never agreed to any of the conditions set forth therein.” Id. On that basis, Woodbridge confirmed that “a claimant seeking to establish a prescriptive easement need not show that it asserted exclusive ownership of the property during the prescriptive period,” but only “that its use was without permission or otherwise unauthorized and that it interfered with the owner’s property interests.” Id. at ¶ 23.
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Luke Mecklenburg, Snell & WilmerMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
Developer’s Fraudulent Statements Are His Responsibility Alone in Construction Defect Case
February 10, 2012 —
CDJ STAFFThe Texas Court of Appeals ruled on December 21 in the case of Helm v Kingston, a construction defect case. After purchasing what was described as “an extremely well-built” two-bedroom townhouse, Mr. Kingston made complaints of construction defects. Greenway Development did not repair the defects to Kingston’s satisfaction, and he filed notice of suit. In his suit, he claimed that GDI and its president, John Helm, had committed fraud and negligent misrepresentation. Kingston claimed that Helm “fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of workmanship was atrocious.” Helms brought a counterclaim that Kingston’s suit was frivolous.
About four years after Kingston purchased the townhome, the suit proceeded to trial. The trial court determined that Helm was not “liable in his individual capacity,” but this was reversed at appeal.
A second trial was held ten years later on the question of whether Kingston’s unit was a townhome or an apartment. A jury found that Helm “engaged in a false, misleading or deceptive act or practice that Kingston relied on to his detriment.” Kingston was awarded $75,862.29 and an additional $95,000 in attorney fees by the jury. Helms made an unsuccessful appeal to the Appeals Court, after which Kingston was awarded an additional $10,000. Helms then made an unsuccessful appeal to the Texas Supreme Court, which lead to an additional $3,000 for Kingston. There was also a verdict of $48,770.09 in pre-judgment interest and “five percent post-judgment interest accruing from the date of the judgment until the time the judgment is paid. Helm appealed.
In his appeal, Helm raised seven issues, which the court reorganized into five Kingston raised one issue on cross-appeal.
Helms’ first claim was that Kingston “failed to satisfy the requirement of” Texas’s Residential Construction Liability Act and that by not filing under the RCLA, Kingston’s fraud and misrepresentation claims were preempted. Further Helms claimed that the RCLA limited Kingston’s damages. The court rejected this, as the RCLA deals with complaints made to a contractor and not only did Helm fail to “conclusively establish” his “status as a ‘contractor’ under the statutory definition,” Helm testified that he was “not a contactor” at the pre-trial hearing.
Helms’s second claim was that Kingston’s later claim of a misconstructed firewall should be barred, claiming that Kingston “‘had knowledge of a defect in the firewall’ as early as 1997 but did not assert them until 2007.” The court rejected this because Kingston’s claim was that “Helm ‘fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of the workmanship was atrocious.’”
Helms also challenged whether his statements that the residence was of “good quality” constituted fraud and misrepresentation under Texas’s Deceptive Trade Practices-Consumer Protection Act. The court concluded that Helm was in a position to make knowledgeable statements and further that “residential housing units are not artistic works for which quality is inherently a matter of subjective judgment.” Helm also claimed that Kingston could have avoided certain repair expenses through the “exercise of reasonable care.” Helms argued that the repairs could have been made for $6,400. The court disagreed, as these claims were cited only to invoke the DTPA, and that later petitions established additional defects.
Helms’s next claim was that he was not allowed to designate responsible third parties. The court rejected this because there GDI represented matters concerning the residence only through Helm’s statements. The court noted that “Helm is correct that?third parties may be liable for fraud if they ‘participated in the fraudulent transactions and reaped the benefits,’” but they note that “Helm never specifically alleged that GDI or CREIC participated in Helm’s alleged fraudulent transactions.
The final issue in the decision was about court costs, and here the court denied claims on both sides. Helm argued that the award of legal fees were excessive, as they exceeded the actual damages. The court noted that they “may not substitute our judgment for that of the jury,” and also that “the ratio between the actual damages awarded and the attorney’s fees is not a factor that determines the reasonableness of the fees.” But the court also rejected Kingston’s claim for post-judgment interest on $10,312.30 that Helm had deposited in the trial court’s registry. The court noted that the monies were to be paid out upon final judgment, but the mandate did not include any reference to interest.
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What are the Potential Damages when a House is a Lemon?
September 01, 2016 —
Haldon L. Greenberg, Esq. – Florida Construction Law NewsIt seems that lemons are front page news these days. Beyonce just released a chart-topping[1] album all about what to do when life hands you lemons. In today’s vernacular, we use the term “Lemon” to describe a person or thing that is unsatisfactory, disappointing, or feeble.[2] In Florida, there is a “Lemon Law” that provides a way for consumers to receive a replacement or full refund for vehicles found to have defects which may affect the vehicle’s safety, value or use.[3] While there is no “Lemon Law” for construction projects, in Gray v. Mark Hall Homes, Inc.,[4] Florida’s Second District Court of Appeal cited to Florida Supreme Court precedent in holding that a home builder was on the hook for the entire contract value of a home he contracted to build for the Plaintiff, when it was revealed the home was a “Lemon”, or as the evidence at trial showed, “valueless.”
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Haldon L. Greenberg, Esq., Cole, Scott & Kissane, P.A.Mr. Greenberg may be contacted at
haldon.greenburg@csklegal.com
