Netherlands’ Developer Presents Modular Homes for Young Professionals
March 05, 2015 —
Beverley BevenFlorez-CDJ STAFFBuilder Magazine reported that Heijmans, a development and building company based in The Netherlands, believes their new modular home, the Heijmans ONE, is a solution for young professionals looking for an affordable, urban option.
“As a designer, I believe prefabricated architecture can beautifully balance quality, experience and economic feasibility,” the project's architect Tim van der Grinten, of Moodbuilders Architecture, told Builder Magazine. “The architecture of this compact house is characterized by natural materials, space, openness and identity. It is a clearly recognizable property that you can make your own.”
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Goldman Veteran Said to Buy Mortgages After Big Short
February 05, 2015 —
Heather Perlberg – Bloomberg(Bloomberg) -- Dan Sparks helped Goldman Sachs Group Inc. profit from its bets against subprime mortgages. Now he’s expanding credit to Americans hurt when those types of loans soured and the housing market collapsed.
Sparks’s SG Capital Partners this year began buying home loans made through origination partners across the U.S., with a focus on mortgages without government backing, said two people with knowledge of the business who asked not to be identified because the information is private. Mortgages that don’t qualify for purchase by government agencies include large-balance jumbo loans and those to borrowers with lower credit scores or higher debt.
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Heather Perlberg, BloombergMs. Perlberg may be contacted at
hperlberg@bloomberg.net
Times Square Alteration Opened Up a Can of Worms
January 26, 2017 —
Nadine M. Post – Engineering News-RecordCompared with some of its Manhattan neighbors, a high-rise on the corner of Seventh Avenue and West 47th Street looks standard. Like many buildings in Times Square, the 41-story retail-entertainment-hotel development, nearly topped out, has a tower springing from a boxy base that will sport a flashy billboard.
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Nadine M. Post, Engineering News-RecordMs. Post may be contacted at
postn@enr.com
Traub Lieberman Partner Kathryn Keller and Associate Steven Hollis Secure Final Summary Judgment in Favor of Homeowner’s Insurance Company
April 02, 2024 —
Kathryn Keller & Steven A. Hollis - Traub LiebermanTraub Lieberman Partner Kathryn Keller and Associate Steven Hollis obtained summary judgment on behalf of a major homeowners’ insurer in a breach of contract action in the Ninth Judicial Circuit in and for Osceola County, Florida. The underlying claim involved a water loss in a bathroom of the Plaintiff’s property allegedly resulting in substantial damage to the home. The claim had been reported by Plaintiff’s counsel. The Plaintiff had retained counsel and two vendors before giving notice to the insurer. In addition, the insurer’s field adjuster was not provided the opportunity to inspect the plumbing parts that had been allegedly damaged. Specifically, the drainage system had been completely removed and replaced. The insurer retained an engineer, who concluded that the removal of the original plumbing components hindered the ability of the engineer to determine their conditions prior to removal. Meanwhile, the surface conditions of the white PVC pipe appeared bright and shiny as compared to other piping. The insured had also failed to provide a signed, sworn proof of loss within sixty days after the loss.
Reprinted courtesy of
Kathryn Keller, Traub Lieberman and
Steven A. Hollis, Traub Lieberman
Ms. Keller may be contacted at kkeller@tlsslaw.com
Mr. Hollis may be contacted at shollis@tlsslaw.com
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Failure to Meet Code Case Remanded to Lower Court for Attorney Fees
May 24, 2011 —
CDJ STAFFJudge Patricia J. Cottrell, ruling on the case Roger Wilkes, et al. v. Shaw Enterprises, LLC, in the Tennessee Court of Appeals, upheld the trial court’s conclusion that “the builder constructed the house in accordance with good building practices even though it was not in strict conformance with the building code.” However, Judge Cottrell directed the lower court to “award to Appellants reasonable attorneys' fees and costs incurred in their first appeal, as determined by the trial court.”
Judge Cottrell cited in her opinion the contract which specified that the house would be constructed “in accordance with good building practices.” However, after the Wilkes discovered water leakage, the inspections revealed that “that Shaw had not installed through-wall flashing and weep holes when the house was built.” The trial court concluded that:
“Separate and apart from the flashing and weep holes, the trial court concluded the Wilkeses were entitled to recover damages for the other defects they proved based on the cost of repair estimates introduced during the first and second trials, which the court adjusted for credibility reasons. Thus, the trial court recalculated the amount the Wilkeses were entitled to recover and concluded they were entitled to $17,721 for the value of repairs for defects in violation of good business practices, and an additional 15%, or $2,658.15, for management, overhead, and profit of a licensed contractor. This resulted in a judgment in the amount of $20,370.15. The trial court awarded the Wilkeses attorneys” fees through the Page 9 first trial in the amount of $5,094.78 and discretionary costs in the amount of $1,500. The total judgment following the second trial totaled $26,973.93.”
In this second appeal, Judge Cottrell concluded, that “the trial court thus did not have the authority to decide the Wilkeses were not entitled to their attorneys” fees and costs incurred in the first appeal.”
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Keeping Detailed Records: The Best Defense to Constructive Eviction
October 24, 2023 —
Ben T. Welch & Ken Brown - Snell & WilmerInevitably, commercial property owners and managers will be faced with a claim by a tenant of constructive eviction. This article is intended to describe what constructive eviction is and to suggest what owners and managers can do to prepare for, and ward off, such claims.
Constructive eviction occurs where a tenant’s “right of possession and enjoyment” of the leasehold is disrupted by the landlord in a manner that renders the premises “unsuitable for the purposes intended.”i Put another way, it is interference that is so “substantial nature and so injurious as to deprive the tenant of the beneficial enjoyment of a part or the whole of the demised premises.”ii Although easy to describe in theory, constructive eviction can be devilishly difficult to determine in the real world. In litigation, determining when interference crosses over the line to constructive eviction is intensely fact-sensitive and resists sweeping generalizations.iii
For instance, Utah courts have held that tenants have been constructively evicted when they have been subjected to continual harassment or insults by the landlord or the landlord’s agent,iv prevented or impaired in their access to the leased premises during operating hours,v or when a landlord fails to provide an operable elevator (or other essential commercial amenities) necessary for a tenant’s business operations.vi By contrast, claims of “discomfort” or “inconvenience” have been rejected as a basis for constructive eviction.vii The same goes for claims that a landlord wrongfully served a three-day notice to pay or quit.viii
Generally, constructive eviction is an affirmative defense made in response to a landlord’s lawsuit for nonpayment of rent.ix It is not, as is commonly supposed, a basis for a tenant’s premature abandonment of the premises. In other words, the defense is raised after the tenant has vacated as a result of being effectively “evicted.”x Further, the defense requires the tenant to actually abandon the premises and do so within a “reasonable time” after the alleged interference.xi A tenant cannot stay in possession and simply refuse to pay rent on the basis of constructive eviction.xii
The key consideration in preparing for, and responding to, a claim of constructive eviction is keeping good records. A tenant claiming constructive evicting likely must prove that the issue was raised in a timely manner and, despite multiple entreaties, was never resolved.xiii As such, it is critical that landlords acknowledge tenant complaints as well as document in writing their efforts to ameliorate those complaints. While a landlord does not carry the burden of proof for constructive eviction, detailed documentation can thwart a tenant’s claim that a landlord has been inattentive or unwilling to address the tenant’s concerns.
Detailed records are also useful in disputes where a tenant claims substantial interference. “The whole point of constructive eviction is that the landlord basically drove the tenant out through the landlord’s action or inaction.”xiv As such, a landlord that is unable to document the steps taken in response to complaints will be grossly disadvantaged whereas the tenant, which had control and knowledge of the premises, will have a much easier time describing how the alleged interference deprived them of enjoying the premises.
Even with meticulous records, however, owners and managers may still face claims of construction eviction. In such instances, counsel should be retained to properly advise on compiling, preserving, and employing the evidence necessary to refute the tenant’s claims.
i Gray v. Oxford Worldwide Grp., Inc., 139 P.3d 267, 269 (Utah Ct. App. 2006).
ii Gray, 139 P.3d at 270 (citing Neslen, 254 P.2d at 850) (internal formatting omitted).
iii See Gray, 139 P.3d at 269–70 (citing Thirteenth & Washington Sts. Corp. v. Neslen, 254 P.2d 847, 850 (Utah 1953)); Brugger v. Fonoti, 645 P.2d 647, 648 (Utah 1982).
iv See Gray, 139 P.3d at 270–71.
v Thirteenth & Washington Sts. Corp. v. Neslen, 254 P.2d 847 (Utah 1953).
vi See Richard Barton Enterprises, Inc. v. Tsern, 928 P.2d 368, 375, 378 (Utah 1996) (citing Union City Union Suit Co. v. Miller, 162 A.D.2d 101, 556 N.Y.S.2d 864 (1990)).
vii See Myrah v. Campbell, 163 P.3d 679, 682–84 (Utah Ct. App. 2007).
viii Barton v. MTB Enterprises, 889 P.2d 476, 477 (Utah Ct. App. 1995); see also Brugger, 645 P.2d at 648 (stating that the tenant’s complaints revolved around standard problems commonly associated with building maintenance and did not rise to the level of substantial interference); viv Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 898–900 (Utah 1989) (upholding trial court’s findings of fact concerning insufficiency of disruption so as to justify claim for constructive eviction).
ix See Kenyon v. Regan, 826 P.2d 140, 142 (Utah Ct. App. 1992).
x See Kenyon, 826 P.2d at 142.
xi See Kenyon, 826 P.2d at 142; see also Barton v. MTB Enterprises, Inc., 889 P.2d 476, 477 (Utah Ct. App. 1995); Brugger, 645 P.2d at 648.
xii See Kenyon, 826 P.2d at 142 (citing Fernandez v. Purdue, 518 P.2d 684, 686 (Utah 1974)).
xiii See Brugger, 645 P.2d at 648 (noting that while the tenant had raised legitimate issues concerning state of the premises, the landorld had taken steps to remedy the problems within a reasonable time) (citing 49 Am.Jur.2d, Landlord and Tenant, § 617).
xiv Barton, 889 P.2d at 477.
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Ben T. Welch, Snell & Wilmer and
Ken Brown, Snell & Wilmer
Mr. Welch may be contacted at bwelch@swlaw.com
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Newmeyer Dillion Announces Jason Moberly Caruso As Its Newest Partner
February 01, 2021 —
Newmeyer DillionProminent business and real estate law firm Newmeyer Dillion is pleased to announce that Newport Beach attorney
Jason Moberly Caruso has been elected to partnership.
"Jason has continually shown himself to be a gifted attorney, both in his ability to expand the firm's offerings in land use, environmental law, and the firm's growing appellate practice, as well as in his exceptional approach to client service," said the firm's Managing Partner, Paul Tetzloff. "His positive presence is felt wherever he goes, and we're honored to have him join the firm's partnership."
Caruso focuses his practice on various aspects of "contaminated sites" environmental legal work, complex litigation, and appellate matters. He counsels and represents current and former facility owners and operators in state and federal proceedings, administrative actions, cost recovery cases, and non-litigation site remediation situations. The litigated matters frequently involve the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and its parallel California Hazardous Substances Account Act (HSSA). When clients must go to court, Caruso applies his significant experience in complex state and federal litigation over a broad range of substantive areas, including environmental, business, real estate, construction, and products liability. His experience extends from pre-litigation through trial and post-trial proceedings.
Caruso's practice also includes a special emphasis on appellate matters. Caruso has briefed and argued multiple appeals in the state and federal courts, obtaining victories for clients in general appellate and extraordinary writ proceedings. Caruso has prosecuted and defended appeals involving the firm's existing cases and clients, but has also been engaged by outside clients after the conclusion of trial court proceedings.
An active member of the community, Caruso serves as a mock trial attorney coach for University High School through the Constitutional Rights Foundation Orange County (CRF-OC) and as a member of CRF-OC's Board of Directors. He also serves as a member and secretary of the Orange County Bar Association's Professionalism & Ethics Committee, and is a member of the executive committee of the William P. Gray Legion Lex Inn of Court. Caruso is also committed to pro bono work, endeavoring always to be representing at least one pro bono client via Orange County's Public Law Center.
Caruso earned his B.A., cum laude, from the University of Southern California, and his J.D., cum laude, from the University of California, Hastings College of Law.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 65 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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Subcontractors Aren’t Helpless
July 26, 2017 —
Christopher G. Hill - Construction Law MusingsAs a construction attorney here in Virginia, I often have the pleasure of assisting subcontractors seeking advice on their all important contracts with general contractors. I often sense that these subcontractors feel that they are at the bottom of the food chain and don’t have the “clout” necessary to push back at all against the myriad clauses in these contracts that seek to push the risk downhill. “Pay if Paid” clauses, subordination of lien clauses (which may or may not be enforceable), indemnification language that seems to make the subcontractor liable for way too much, and the dreaded incorporation clauses , would seem to make the subcontractor hold one big “bag of risk” on any construction project.
While this may seem bleak, never fear, as a subcontractor you are not totally helpless. Remember, you don’t have to take a job from a general contractor that you get a bad feeling about. Often the best indicator of whether you want to move forward is your “spidey sense” that something seems a bit off or that the GC is trying to cram too much down your throat. Use your experience in the construction industry to guide your contracting activities. It is better to avoid the bad job than to take it in the long run. If you are a quality subcontractor (and I know you are or you wouldn’t be reading this), other work will come along because general contractors need good subs to get their work done.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
